Michelle Greer, Copa Style Magazine's new Legal Analyst shares her views on the Constitutional implications of Same Sex Marriage. 

" A Finished Discussion - A Closer Look at the Complex Constitutional Implications
of the Supreme Court's Decision on Same Sex Marriage"

By Michelle Greer

On June 26, 2015, the pulse of our nation experienced a surge of emotional divide following the Supreme Court's ruling on same-sex marriage--a judicial decision that is certain to be recorded as one of the most sensitive and controversial in American history. Seldom do we, the American people, have the opportunity to consider whether the Supreme Court actually has the power to render certain decisions. In more layman terms, whether it has exercised its powers in accordance with those granted under the Constitution of the United States. The Court's decision on the constitutionality of state laws prohibiting same sex marriage not only provides us with the opportunity to consider whether its actions were proper, but employs us to do so.

For well over a decade, Americans have engaged in a very vigorous debate over the  constitutionality of same-sex marriage. These ongoing debates have led to the enactment of laws permitting the marriage of same sex partners throughout the United States. However, some states such as Texas have exercised their sovereign right to enact and enforce laws prohibiting the licensing of such unions. Thus, the failure to secure nationwide legalization of same sex marriages has given rise to a Supreme Court decision that has intensified opposing views and spawned hostility between and towards the American people.  But what is the primary crux of the arguments between these opposing views? To most proponents of same-sex marriage these debates are narrowly squared upon the single question of the fundamentality of homosexuality. For them, broadening the definition of marriage is paramount to accessing the equal rights and protections guaranteed under the Constitution. Here is the problem, the U.S. Constitution isn't only a guarantor of rights and protections, it is also a manual of sorts. It provides very specific instructions relating to the division of power between our judicial, legislative, and executive branches of government. It also clearly defines those powers granted to the federal government, while leaving all those powers not otherwise specified therein to the states. Specifically, the 10th Amendment states that, "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."

Unfortunately very little attention or consideration is given to the 10th Amendment.  Therefore, for the mass majority of Americans the issue of same-sex marriage has centered primarily around debates of morality and religion. And quite often, rights such as the free exercise of religion as well as parents rights to rear their children free from governmental influence or interference have been the driving force behind these debates. But these aren't the only concerns giving impetus to these very sensitive and overtly challenging discussions. Concerns regarding the striping of one's constitutional rights in order to protect those of others exist in the hearts and minds of many.  Some would even question the true functionality of our constitution today.  In fact, during several discussions in preparation for this article, a remarkable number of participants raised the question of whether we have become a constitutional-less society.  Have the lines separating our government branches and powers become so blurred that our constitution no longer serves the purpose for which it was intended? Or alternatively, are we merely witnessing a metamorphosis of our constitution that was both contemplated and anticipated by the founding fathers?  These are very difficult questions with far reaching implications for us all.

In rendering its decision on the constitutionality of same sex marriage, the Supreme Court considered two questions. The first was whether the 14th Amendment requires all states to license same sex marriages, and the second was whether states had to recognize the same sex marriages that were lawfully licensed and performed in another state.  The answer to the second question can be clearly found in Article IV, Section I of the Constitution, which provides that "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state". Therefore, even if Texas by its own law prohibits the licensing of same sex marriages, it must acknowledge the validity of same sex marriages performed and licensed by another state.  The first question as to whether the 14 Amendment requires states to license same sex marriages isn't so clear because the language of the Constitution does not speak to this issue. However, the language does speak very clearly to the powers delegated to the Supreme Court and more importantly, the 10th Amendment speaks to those powers that are reserved to the states.  Lawyers, scholars, and judges alike have disagreed with the Supreme Court's ruling not primarily for morality issues, but because in their opinions the Court exercised a power not granted to it under our Constitution.  Clearly stated, the Supreme Court in its decision has stripped states of powers reserved to them under the 10th Amendment, and it did so even in the face of these very arguments being raised in the dissenting opinions of its own justices.  Consider for a moment the significant implications and concerns arising from the Court's actions as opposed to its decision alone.

The first time that the Supreme Court granted cert to consider the constitutionality of state statutes as they related to homosexuality was in the 1986 case of Bowers v. Hardwick. The next time was in the 2003 case of Lawrence v. Texas.  Both were precedent cases, the Lawrence case having overruled the decision rendered in the Bowers case based upon the very opposing arguments presented in the concurring and dissenting opinions of the Supreme Court's 2015 decision on same sex marriage. Of even greater interest is the fact that Justices O' Connor and Kennedy both wrote concurring opinions in the 2003 Lawrence case.  (Note: Chief Justice Kennedy and Justice O'Connor also wrote concurring opinions in the 2015 same sex marriage decision). The relationship between these three Supreme Court decisions, each being separated by over a decade, and the ultimate decision on same sex marriage hasn't received a tremendous amount of public discussion or debate.  However, in my opinion it is certainly a subject matter that beckons closer analysis and certainly warrants further discussion.

Bottom line, when the Supreme Court rendered its decision on same sex marriages, the states with existent laws prohibiting such unions were still engaging in very vigorous debates on the subject matter.  Further, the states engaging in such debates through their respective legislative processes, were acting within the scope of the powers reserved to them under the 10th Amendment of the Constitution. There is no question that this subject matter is very sensitive and one in which the American people as individuals, family units, and as a nation are significantly impacted.  However, the Constitution has set forth the powers under which such debates are to be had and resolved.  In 1986, Justice White delivered the majority opinion in the case of Bowers v. Hardwick, and the following is an excerpt from that opinion:

"The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge made constitutional law having little or no cognizable roots in the language or design of the Constitution". 

Simply put, judges including Supreme Court Justices are charged with interpreting the law, not making it. The state legislative process is not perfect, but then again nor are the people.  We live in a world whereby the game of life in and of itself has both winners and losers.  In our most recent years our nation has seen very robust, time-consuming, and emotional debates on the issue of same sex marriages, with both winners and losers on each side of the debate. Such is the bitter sweet outcome of true democracy.  The fact that the majority of citizens in some states will vote against laws that would permit the licensing of same sex marriage is hard to accept. However, the actions of the Supreme Court in striping states of powers reserved to them in our Constitution in order to effectuate the universal enactment of such laws has far more over reaching implications than the subject matter itself.  The rendering of a decision under these circumstances doesn't end the dispute nor does it realistically anticipate the plethora of even greater and far more challenging issues yet to come from the proverbial opening of Pandora's box. The outcome of a battle isn't truly victorious if it ignites a war that can not be won. Many may disagree, but even in the face of the Supreme Court's decision, we are a long way off from having a finished discussion.

Michelle A. Greer is a licensed attorney and certified mediator with the Law Office of Jeffrey H. London, P.A. located in Pikesville, Maryland.  She has over 20 years of experience in the legal industry and non-profit sector. She holds a B.A. and J.D. from the University of Baltimore, and is bar admitted in the State of Maryland. 

Ms. Greer is also a prolific motivational speaker and distinguished career developer.  Having over 15 years experience as a community advocate and business consultant, she has become a leading expert on women's services and crisis management strategies.  She has been featured in various publications and has appeared on numerous radio and television talk shows, including the OWN Network.

~Copa