Layman's Look At Marriage Laws

Today, the US Supreme Court is hearing arguments on California's Proposition 8. Prop. 8 passed with 52% of the vote, by state referendum. In voting that way, the state's society defined its rules of marriage to be between one man and one woman. They determined the biological definition to be the right one for their society.

When the transcripts and audio files become available, they will be discussed in future articles.

North Carolina passed a state constitutional amendment with a similar definition of marriage. That amendment passed by referendum. The majority of the people decided what their society's definition was.

States have the right to determine the criteria for marriage in their state.

Some require blood tests to prove the couple is not blood-related. Some go so far as to require DNA testing as well.

Some states require proof of divorce. Some require that a divorce decree be executed a certain time in advance, up to a year in some states. Others don't require the dissolution, or proof thereof, of any previous marriage.

Some states require 90 days from application for a license before the union can be witnessed and legal. Others require only 3 days. Some do same-day execution.

Marriage is defined as a union between two or more people based upon the rules of a given society and their culture.

Normally, I oppose strict democracy. It tends to lead to the tyranny of the majority where the rights of the smallest minority, the individual, tend to be trampled.

However, the very definition (lexiconic) of marriage makes the determination of the majority necessary.

In our country, the First Amendment preempts the religious definition of marriage, regardless of the religion.

In our country, a wedding is a religious ritual. A marriage is a legal contract recognized by the government and society it serves. If it were a religious condition, then atheists could never be married. Using the religious basis for religion, it must be blessed and consecrated by a deity. That occurs during a religious wedding ceremony. However, that has no legal standing, because of the First Amendment.

Under the 10th Amendment of the US Constitution, each state has the right to define marriage per its culture and society as a whole. That means it should be up to that popular referendum to determine.

It is why I personally oppose the Defense of Marriage Act that Bill Clinton championed (and executed into law). It violates the 10th Amendment.

Conversely, I oppose any one state refusing to recognize the legal status/contract executed and notarized under the laws of its state.

Texas, California, or North Carolina may not issue marriage licenses or register unions between same-sex couples. That is their 10th Amendment right, as long as popular referendum determined that definition. But if a gay couple legally married in a state, such as Massachusetts, that does issue licenses and registrations to gay couples should move to one of these states that does not; then that new state must recognize the marriage.

The 14th Amendment supports that.

Once upon a time, some states didn't allow multiracial unions. So people went to other states to get married. Some of the states that didn't allow for those unions tried to prosecute those who went to other states to get married. The supreme court deemed such laws unconstitutional under the 14th Amendment. Later, these laws prohibiting mixed-race marriages disappeared, were repealed, or were struck down.  

Sociological views change over time. 100 years ago, women were falsely seen as inferior. They didn't have suffrage privileges. The 20th Amendment to the US Constitution changed that.

200 years ago, despite having served honorably in both the War of Independence and the War of 1812, Americans of African ancestry were falsely viewed as somehow inferior. 60 years later, after another war, that view finally began to change. It took until the 1960s for that evolution of ideology to catch up to the truth.


If science were to advance to the point it allowed same-sex couples to produce biological offspring of shared genetic material, perhaps these states would alter or repeal their amendments that define marriage as one man to one woman. Currently, this is the only non-religious argument that logically prevents same-sex marriage. If that should happen, then all logical arguments against will be nullified. However, the biological argument concerning offspring is a strong one. Many see marriage to primarily be a contract regarding the generation and rearing of biological offspring.

Biologically, it takes a man and a woman to create a child. That is a fact. There is not any technology, yet, that changes that.

Psychological studies have proven that children raised by two parents are more stable and successful than those raised by a single parent. Further studies prove that those raised by both a male and a female role model (a mother and a father) do even better than those raised by same-sex couples. That, of course, assumes the parents are a loving and mutually supportive couple. The studies exempted parental couples determined as dysfunctional (both same-sex and traditional couples).

Cultural and societal mores defining marriage will change over time. It doesn't happen overnight. The case of marriage is one dependent upon popular view and acceptance. As long as the majority within any state rejects same-sex marriages preferring the traditional/biological definition, the state has the right to its current definition. When the majority shifts, so should the legal definition.