How Town Meeting Prayers, and Marriage Are Related

On June 22, I concluded my summary of the U.S. Supreme Court's holding in Town of Greece v. Galloway by saying, "I think the reasoning in this case could be of great importance in other areas of constitutional law. My thoughts on the importance of the case will follow."

So, here they are.

The right of a man to marry a woman, and vice versa, nowhere appears in the U.S. Constitution. Nevertheless, it has been an undoubted right of all adult men and women living in America -- both before and since the adoption of the U. S. Constitution.

And it wasn't a right of just one group of colonists. All male and female colonists, whether English, French, Spanish, Dutch, Swedish, etc., enjoyed the right whether they resided in English, French or Spanish colonies. Indeed, even the native peoples, Iroquois, Huron, Sioux, etc., enjoyed the right. For that reason, the right to marry seems to be one of those rights retained by the people and reserved to the people or states by the Ninth and 10th amendments.

-- "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." -- Amendment IX

-- "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" -- Amendment X

And while the right to marry is nowhere mentioned in the U.S. Constitution, neither does the Constitution give Congress or the federal government any power to regulate marriage. In the powers of Congress enumerated in Article I, Section 8, there is nothing whatsoever about "marriage."

Historically, marriage in America has been between one man and one woman. The U. S. Supreme court holding Reynolds v. U. S. (1878) makes that patently clear:

"Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. ...

" ... from the earliest history of England, polygamy has been treated as an offence against society. After the establishment of the ecclesiastical courts, and until the time of James I., it was punished through the instrumentality of those tribunals ...

"By the statute of 1 James I. (c. 11), the offence, if committed in England or Wales, was made punishable in the civil courts, and the penalty was death. As this statute was limited in its operation to England and Wales, it was at a very early period re-enacted, generally with some modifications, in all the colonies.

"In connection with the case we are now considering, it is a significant fact that on the 8th of December, 1788, after the passage of the "act establishing religious freedom," and after the convention of Virginia had recommended as an amendment to the Constitution of the United States the declaration in a bill of rights that 'all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience,' the legislature of that State substantially enacted the statute of James I., death penalty included."

The argument can be made that a 14th Amendment (1868) "equal protection" argument was not advanced in Reynolds v. U.S. But it can also be argued that it wasn't made because nobody seriously believed that the 14th Amendment was enacted to guarantee polygamous marriages equal rights with marriages between one man and one woman.

Town of Greece v. Galloway (2014) was not a case about marriage. Rather, it concerned the constitutionality of opening a town meeting with a prayer. But look at what the court said:

"The First Congress made it an early item of business to appoint and pay official chaplains, and both the House and Senate have maintained the office virtually uninterrupted since that time. ...

"When Marsh was decided, in 1983, legislative prayer had persisted in the Nebraska Legislature for more than a century, and the majority of the other States also had the same, consistent practice. ...

"In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with a prayer has become part of the fabric of our society."

Now, change a few words and you can see what the court could easily say if it opts to hold that non-traditional marriages do not get the same constitutional protection as traditional marriages:

"In light of the unambiguous and unbroken American history of more than 500 years, there can be no doubt that marriage is between one man and one woman, and that that practice has become part of the fabric of our society."

The point is simply this: For 500 years, nobody who came to America believed as a matter of law that marriage was anything other than a union between one man and one woman, except perhaps the Mormons.

But if marriage is reserved to the people and the states, then the decision to expand or not to expand the meaning of marriage resides with states and not with the federal government.

And that leads me to consider another new U.S. Supreme Court holding, Schuette v. BAMN, which may also have significant bearing on the non-traditional marriage question. So get ready for one more op-ed.

Posted Online:  June 30, 2014 at 2:20 pm - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea