By: Sean O’Donnell

Peter McClelland’s article urging conservatives to reject the upcoming marriage amendment (Carolina Review, 01/29/2012) presents an honest, but incomplete, attempt to invoke the banner of individual liberty. His argument falls short because it overlooks the fundamentals of our laws and history. The author warns that the amendment “may seriously violate the federal constitution.” This fear of a constitutional violation is questionable for the simple reason that the male and female requirement for marriage is already codified in a North Carolina statute (NCGS §51-1). If current law already codifies this definition without triggering a constitutional violation, why would turning that existing statute into a constitutional amendment create a new violation? Furthermore, 30 states already have a constitutional amendment protecting traditional marriage in some form. The U.S. Supreme Court has found
exactly zero of these amendments unconstitutional. It is impossible to “enshrine” in a state constitution a violation that does not exist.

More specifically, the author claims that the proposed amendment violates the Equal Protection Clause of the Fourteenth Amendment. This amendment prohibits states from “deny[ing] to any person within its jurisdiction the equal protection of the laws.” He argues that heterosexuals are allowed to marry. Homosexuals are not. Therefore, this is a facial constitutional violation. Laws, by their nature, draw distinctions between classes of people. Children under the age of fifteen generally cannot operate a motor vehicle (NCGS §20-7). Only those admitted to the North Carolina State Bar may practice law (NCGS§84-4). Wealthy individuals must pay a higher income tax rate on wages than lower-income earners (NCGS §105-134.2). In each of these examples, North Carolina law treats various classes of people differently. Yet, none of these distinctions are unconstitutional. Not every class distinction violates the Equal Protection Clause.

The U.S. Supreme Court recognized this and imposed a set of guidelines for making these determinations. (1) Laws that distinguish based upon race are presumptively unconstitutional. (2) Laws that distinguish by gender receive less scrutiny from the court, but are often overturned. (3) Laws that classify a type of behavior or a custom, such as marriage, receive even less scrutiny and are almost always upheld as constitutional. A constitutional amendment defining marriage as between a man and woman falls squarely within the third category and will receive a lot of deference.[1] Indeed, the Court has never overturned any of the 30 other state amendments that uphold traditional marriage. Why would North Carolina’s adoption of such an amendment convince the Court to involve itself in a heated policy issue (something the Court very much dislikes doing)?

One legal justification for the Marriage Amendment lies in the Tenth Amendment which reserves powers not delegated to the federal government by the Constitution “to the states respectively, or to the people.”[2] This amendment expresses the Founders’ belief in limited powers and preserves as much self-government as possible at the local level. The federal government only has powers specifically granted in the Constitution to it. States, unlike the federal government, do possess general legislative powers. Formulating a definition of marriage is not enumerated in the U.S. Constitution. Thus, such a task is more appropriate for North Carolina citizens to undertake through the democratic process. Moreover, the states have good reason to define marriage. The states must administer courts, regulate adoptions, and ensure the welfare of children. The states are more qualified to make these local determinations than political appointees in Washington.

Referendum opponents cite a “tyranny of the majority” as a strike against the Marriage Amendment. In reality, these opponents are the ones who want to invert the balance of state and federal power crafted by the Founders. They want the federal government to seize the otherwise reserved power of defining marriage and impose it on states like North Carolina. The federal government, they argue, should use all of its enforcement powers to implement the new meaning. This is hardly what the Founders intended when creating a divided government. Perhaps the most misleading argument for conservatives is that recognizing homosexual marriage will enhance individual liberty and reduce the power of the government.
These phrases obviously appeal to our libertarian inclinations. Unfortunately, the opposite is true. Redefining marriage will lead to less liberty when the new definition inevitably conflicts with the religious beliefs of others who wish to participate in public life. Homosexual “marriage” advocates are not arguing for more freedom to associate and engage in sexual contact with one another. The Supreme Court already provided that “right” in Lawrence v. Texas.[3] Thus, they are not losing any rights that they currently possess. Rather, their goal is to redefine marriage into something entirely foreign and use government coercion to impose this new definition on church pulpits, institutions, and associations. It is those in favor or redefining marriage who wish to take away religious liberties under the guise of “tolerance.” Challenging this new definition will become a “thought crime,” as it has in other places. One need only look to the pastor dragged before a Canadian “Human Rights” Commission for quoting Leviticus or the fate of a Catholic adoption agency in Massachusetts to
know how dangerous such a newfound “individual liberty” can become.

North Carolina citizens can guard against this path of state-imposed orthodoxy by retaining the traditional form of marriage in their state constitution. The Marriage Amendment can survive constitutional scrutiny, reinforce the principle of federalism, and protect North Carolinians’ religious freedoms from eroding.

[2]
U.S. Const. Amendment X

[3]
539 U.S. 558 (2003).