In late May 2015, Markus Schmidt published in the Richmond Times-Dispatch an interesting article about the famous 1966 Supreme Court case, LOVING vs. VIRGINIA and its possible impact on the gay marriage case currently pending before the US Supreme Court. LOVING thankfully outlawed Virginia's legal hostility toward interracial marriage. So, ”activist" federal judges had to do what the State of Virginia and many other mostly Southern states had stupidly refused to do: recognize the "basic civil right" to marriage as recited by US Supreme Court Chief Justice Earl Warren. OF COURSE, judges "make law" when they rule in such fashion. That is the proper function of a separate and equal judicial branch of government. Meanwhile, the legislative branch does not always get to do whatever it wishes, not even a democratically elected one!
The State of Virginia bans not only religious gay marriage but also civil gay marriage. The current litigation involves only the bans against civil (non-religious) gay marriage. Yet, even religious marriages must be sanctioned by state law, with civil licensure and certification requirements. Many so-called “conservatives” still believe the 10th Amendment is a "states' rights" blank-check empowerment of the states as against Congress, but that is not so. The delegates to the federal Constitutional Convention were not authorized to empower the states. Those other powers are only RESERVED, NOT GRANTED to the states. Therefore, the 10th Amendment operates only as a restraint against unlimited federal powers. One must look to the applicable state constitutions that empower or limit the states as thus recited; but for state constitutions, a particular state government would not even legally exist nor have any power to act at all.
The proper query here is whether or not a state government has a specific power to prevent the creation of private civil relationships between consenting, unrelated adults. Few would likely tolerate government prohibition of religious marital liturgies, so why tolerate government prohibition of civil gay marriages? Under the 14th Amendment, the US Constitution (the "Supreme Law of the Land") recognizes our basic civil right to equal protection of the laws, over and above the whims and prejudices of elected legislators. This means that gays have exactly the same rights and liberties as straights. No more, no less. No American government, not even a democracy, may pass laws against that rule absent some "compelling" reason. Mere preservation of vague, subjective, religious "traditions" reflected by someone's mere opinion is not compelling under any constitutional measure. The US may well be a "Christian Nation" in the eyes of many but, to be fair, our governments should be firmly secular at all times.
It is my fervent hope that the US Supreme Court will view this issue through the correct end of the "constitutional telescope" and clearly enunciate vigorous limits on such state powers rather than squirm to find yet another discrete right.
