Rob Natelson
tenthamendmentcenter.com
April 11, 2013
I’ve found that most of the discussion about same-sex marriage, even among lawyers, tends to mis-characterize the constitutional issues. This is particularly true of the “equal protection” issues.
Under the Constitution as originally understood, jurisdiction over domestic relations outside federal enclaves and federal territories was reserved to the states.
State laws dealing with domestic relations are, however, subject to the mandates of the Fourteenth Amendment. That provision requires states to honor “due process of law” and to grant all citizens “equal protection of the laws.” (The Supreme Court has added that the Fifth Amendment imposes a similar equal protection standard on the federal government; a more credible reading of the Constitution would derive some federal equal protection obligations from the “proper” component of the Necessary and Proper Clause.)
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