In a startling turn of events today, the Obama Administration has chosen not to defend the Constitutionality of the Federal, “Defense of Marriage Act” (1996). While this might be somewhat unsettling to the morals of many, there is certainly a silver lining to this storm cloud from Washington.
Several states have recently passed either blatant “Gay Marriage” laws or Civil Union Laws, including President Obama’s claimed home state of Hawaii. These states (including The District of Columbia) have done so in direct defiance of the 1996 Federal Law which was overwhelmingly passed, 342-67 and 85-14, and signed into law by then President Bill Clinton. This outright resistance to Federal Law, by these states, baffles most people who were educated in government schools. We were told the Federal Government is the supreme authority and the states are little more than administrative districts. That line of thought however is not based in logic nor does it have historical standing. One concept that is poorly taught in government schools is that the United States are States; we are not the United Administrative Districts of Columbia. When our Union was re-founded under the Constitution, terms and conditions of the Union were set and clearly described in the Constitution. The several States, which were (and are) as sovereign as France and Spain, came together and created a mutually beneficial general government, wherein they ceded certain and specific powers to that general government, which were clearly defined in the Constitution and the first ten amendments; The Bill of Rights. It was very clear from the beginning of the union that the States had no intention to cede all their powers, since the people in each state were different; they had different ideas on governance and different state religions. They had no intentions of allowing the new government the authority to meddle in social matters. The States were so adamant about this fact that they demanded the Tenth Amendment which states-
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
In other words, if it is not written it is not said (the first rule of contract) and the States keep all the powers not mentioned; this goes for the administration of marriage.
Based upon the obvious nature of our Constitution, it should be clear that the Defense of Marriage Act of 1996 is an act outside the powers assigned to the general government in the Constitution; it is unconstitutional. Furthermore, states like Hawaii who ignored the federal law, and made their own Civil Union law, in blatant rebellion to the Federal Government, are fully within their rights as a state to do so. I know that statement is going to ruffle a few feathers on moral lines, and I am certainly not endorsing gay marriage (I don’t think the government has any business in the marriage business but that is a different matter). The principle of the matter is what is important here, who has the right to make a law on marriage? If the Tenth Amendment stands true, it is the “…States or the people.”
The silver lining within this turn of events; States rights are alive and well! Hawaii nullified federal law by passing one of their own, obtuse to DMA-1996. Although Hawaii did not follow the exact Jeffersonian principles described clearly in the Kentucky and Virginia Resolutions of 1798, the outcomes are the same; the states interposed lawfully. Furthermore, with the Obama administration’s cease order, in regards to enforcement of the gay marriage laws, the principle of nullification in the modern day is strengthened (perhaps by accident). Although the modern precedence is kind of neat, the “Principles of ’98,” stand on their own as their Constitutional orthodoxy is as firmly moored to the history of our country as the men that wrote them; Thomas Jefferson and James Madison, the author of the Declaration of Independence and the Father of the Constitution. Today “Hang Ten” has a new meaning to me; the Tenth Amendment is Alive and well. I look forward to the day when the Federal government gives up hopes of defending the very unconstitutional Obamacare.