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

Constitution Is a Flexible, Living Document -- Within Limits!

The Constitution gives Congress explicit power to regulate commerce among the states. Every baby born in America will eventually use public transportation and the interstate highway system. Population increases require greater congressional expenditures to build and maintain those systems.

So to prevent increases in the population with the attendant costs to the public, would Vice President Joe Biden (recall his recent China trip) say that Congress has power to regulate commerce among the states to limit the number of children a family might be allowed to have to one or two? To require the use of contraception or abstinence?

When the Constitution was adopted, the governments of the several sovereign states were not abolished. But the very people who set up the states, decided that states were good at some things, and not very good at others. Those powers the states possessed, but were not very good at exercising, were taken away and vested in the new federal government.

The powers vested in Congress are generally known as "enumerated powers" because they are "enumerated" in Article I. That article has not been amended since the date it was adopted. The 18 enumerated powers include:

-- Power to lay and collect taxes ... to pay the debts and provide for the common defense and general welfare of the U.S.

-- To borrow money on the credit of the U. S.

-- To regulate commerce with foreign nations, and among the several states.

-- To establish a uniform rule of naturalization.

-- To coin money, and regulate the value thereof.

-- To establish post offices and post roads.

-- To punish piracies and felonies on the high seas.

-- To declare war.

-- To raise armies.

-- To provide and maintain a navy.

-- To make all laws which shall be necessary and proper for carrying into executing the foregoing powers.

There is no grant of power to Congress to establish a religion, regulate speech, or abolish the right to bear arms. But what if Congress, having enumerated powers, expanded them under the theory that the Constitution was a non-rigid, flexible, dynamic, living document, and under the theory that such an expansion was "necessary and proper" for carrying into execution one of its 17 other enumerated powers? What if Congress decided that pursuant to the power granted to it to "lay and collect taxes to provide for the general welfare," that it was "necessary and proper" that it should subsidize the Catholic faith over the Jewish faith?

What if Congress decided that the holy days of the disparate religions were burdening interstate commerce, and that it should establish one religion under its power to regulate commerce so as to remove the time lost by disparate holy days?

To make sure that sort of thing didn't happen, 10 Amendments, known as the Bill of Rights, were added to the Constitution in 1791.

The Bill of Rights was passed because the American people were afraid that even though Congress had only been given certain enumerated powers that, left to its own devices, it would, like every other government, seek to expand those powers in the name of necessity. The First Amendment contains an unequivocal statement that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging freedom of speech or the press." The Second provides that "the right of the people to keep and bear Arms, shall not be infringed."

Most Americans are aware of at least some of the amendments. But few seem to be aware of the 10th.

"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."

Nowhere is Congress given the power to say what marriage is, or what a state may prohibit as constituting, murder, burglary, or theft.

Nowhere is Congress given power to say whether a man and his wife my opt to use a contraceptive. As the states clearly had power to define marriage, and punish criminal offenses before the Constitution was enacted, and since no such power was delegated to Congress, these are powers "reserved to the states." And a married couples choice to employ or not to employ a contraceptive is similarly a question "reserved" either to the "states" or the "people." As a further guarantee, the 9th Amendment provides, "The enumeration in this Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

That means, the fact that Constitution expressly says that a man has a right to trial by jury does not mean that he does not also "retain" the right to share a contraceptive with his wife.

The Preamble states that a goal of the new Constitution was to "promote the general welfare." But if Congress can pass any law that it deems "promotes the general welfare," why bother to enumerate 18 specific powers? They become surplusage. And the Bill of Rights becomes a nullity.

Conservatives do not deny the Constitution is a dynamic, living document. But they believe it must be construed as the founding fathers intended it to be construed -- with the states and people exercising the "reserved powers" and with Congress exercising only those powers specifically granted to it by the Constitution -- which the people of the states decided could better be exercised by a federal government!

So, when you authorize the painter to paint your living room, is it also "necessary and proper," or for your "general welfare" for him to paint your car?


Posted Online: Sept. 07, 2011, 2:23 pm - Quad-Cities Online

by John Donald O'Shea

Copyright 2011, John Donald O'Shea