On Same-Sex Marriage, Supreme Court Needs to Go Back to High School

05/01/2015 11:28 am ET | Updated May 01, 2016

In recent hearings on efforts by state governments to ban same-sex marriages, Supreme Court justices peppered representatives of both sides with questions. Questioning is generally a good thing, but in this case many of the questions had little to do with the law or the United States Constitution, issues the court is sponsored to address.

Many of the Supreme Court Justices need to go back to high school where students examine the basic principles of the United States Constitution.

First, the text of the Constitution never mentions marriage, straight marriage, gay marriage, or any other kind of marriage. It is not defined banned, or encouraged for that matter.

The Bill of Rights, the first ten amendments to the United States Constitution that were approved in 1791 do provide some clarity on the issue of marriage regulation.

According to the ninth amendment, the "enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." That seems to mean that even though marriage is not discussed in the original Constitution, people still have a right to get married if they want to.

The tenth amendment states "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." This provision seems to assign definition and regulation of marriage to the states until, as we shall see below, everything changed in 1868.

The first amendment of the Constitution prohibits Congress from making any laws "respecting an establishment of religion" which seems to mean that Congress cannot impose religious beliefs on the American people. While this did not prohibit states from codifying religious beliefs in the law, that also changed when the fourteenth amendment was approved in 1868.

The fourteenth amendment was passed after the Civil War to prevent former slave states from denying legal rights to newly freed Blacks. However it does not just refer to the rights of African Americans. It very specifically states:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

To repeat for emphasis and clarity:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

"[N]or shall any State deprive any person of life, liberty, or property, without due process of law."

"[N]or deny to any person within its jurisdiction the equal protection of the laws."

The way I read this and taught about it as a high school social studies teacher, states are obligated to abide by the provisions of the United States Constitution and there must be one set of laws for everybody. A state cannot have a law granting legal rights to one group of people and not another. The country may not have been thinking about gays and lesbians in 1868 or about same-sex marriage, but that is what the Constitution says. If opponents of same-sex marriage want to ban them, it looks like they would have to change the United States Constitution.

What weirded me out about the Supreme Court comments and questioning, especially from the "conservative" contingent, is how many of the judges do not seem to understand these basic principles. I am not sure if the problem is poor reading skills, ignorance, or prejudice.

Justice Anthony Kennedy was upset about discussion of same-sex marriage because restricting the legal right to marriage to a man and woman has "been with us for millennia. And it's very difficult for the court to say, 'Oh, well, we know better.' " Kennedy added that the social science the value and perils of same-sex marriage is "too new." Of course Kennedy has every right to be upset, but he is supposed to be deciding the case based on the wording of the Constitution, not his personal feelings or what was done in the distant past.

Justice Antonin Scalia, who prides himself on following the specific text of the Constitution decided in this case to ignore it. Instead he demanded to know "Do you know of any society, prior to the Netherlands in 2001, that permitted same-sex marriage?" Scalia also wants to protect the religious freedom of clergy who do not want to perform same-sex marriages, although why that should block civil marriages was not explained.

Justice Samuel Alito was not really interested in law or the Constitution at all. He was just worried because if the Constitutional rights of people seeking same-sex marriage were upheld, that might open the legal door for group marriages, which no one seems to be advocating for at this point. Alito also focused on ancient Greece, which permitted open homosexuality, but did not have same-sex marriage. But of course ancient Greek law, which permitted slavery and denied women legal rights, is not imbedded in the United States Constitution, at least any longer.

I was also not that impressed with the legal acuity of the more liberal Justice Stephen Breyer. Breyer was concerned that pro-same-sex marriage advocates wanted the judges "to require states that don't want to do it to change what marriage is to include gay people." Which is true; but that is the role of the Judicial Branch of government in the United States when state action violates Constitutional principles.

The one judge who seemed most on target in her questions and comments was Justice Sonia Sotomayor who demanded to know from opponents of same-sex marriage "How does withholding marriage from one group -- same-sex couples -- increase the value to the other group?" She also wanted to know if "the right to be married is embedded in our Constitution, why, then, can the state bar gay people from this 'fundamental' right?"

Justices Elena Kagan and Ruth Ginsburg also deserve credit for challenging the "procreation-centric view of marriage." They wanted to know if opponents of same-sex marriage thought it would be legal to bar people from getting married who do not want to have children or perhaps were already too old. While they also were not addressing the Constitution, I thought they were being appropriately sarcastic.

While the issue was not raised in these court proceedings, the fear that permitting same-sex marriage would lead to the legalization of marriages between people and animals has been raised in other United States courts. But not to worry. Constitutional rights are only granted to people.

In the United States, state legislatures can pass any stupid proclamation they want.

Currently in Mississippi it is illegal to curse in public; cannibalism is punishable by up to fourteen years in prison in Idaho; students break the law in Connecticut if they give a term paper to a friend; the Texas state constitution demands that all state elected officials swear to their belief in a Supreme Being; in New York it is illegal for three or more persons wearing masks to gather in public except for masquerades and Halloween; Oklahoma still has a law declaring the existence of an international communist conspiracy committed to the overthrow of the governments of the United States and Oklahoma; and in Virginia, the state that claims to be for lovers, sex remains banned outside of marriage. Virginia law also apparently dictates the proper way to have sex.

State legislatures can declare the moon is made of green cheese, two plus two equals five, the Earth was created in six days, belief in science is a left-wing conspiracy, or that marriage can only be between a man and woman.

However, it is the job of the United States Supreme Court to ensure state law does not violate two conditions. Under terms of the first amendment, they must show their proclamation is not ensconced in a particular religious belief. Under terms of the fourteenth amendment, laws cannot not discriminate against citizens of the United States or deny any person due process of law.

Unfortunately for proponents of the stupid, bans on same-sex marriages violate both constitutional principles. If the justices look at footage of antigay marriage protests they will see that they are fundamentally rooted in religious beliefs. They also violate the equal protect of the law clause of the fourteenth amendment.

The Supreme Court ruled in the 1954 Brown v. Board of Education case that separate but equal can never be equal. Barring a group of citizens of the United States from marrying creates a separate caste not protected by due process and is a violation of American Constitutional law. It is illegal, no matter what people did or didn't do in ancient Greece or Rome.