CONLEY COMMENTARY (WSAU) – A month ago, five justices on the U.S. Supreme Court overturned Roe v. Wade. Their ruling was legally sound. The right to an abortion is nowhere in the Constitution. It was made up within the Court’s ruling in 1973, and is now, correctly, returned to the states.
Justice Clarence Thomas wrote a concurring opinion. He suggested that other made-up rights should also be reviewed. He’s a lonely voice on the issue; no one else on the court signed onto his concurrence. But he is correct.
What the Constitution says is that rights that are not enumerated are reserved to the individual states or to the people. Marriage is mentioned nowhere in the Constitution. That doesn’t make marriage illegal. But marriage between homosexuals is not a constitutional right. It’s up to individual states to decide.
States already have different marriage laws. Some states recognize common-law marriage; others do not. Some require a waiting period between getting a license and getting married; some don’t require licenses at all. Teenager minors can get married in some states with parental consent. Some states allow third cousins to get married. Three states: Vermont, Maryland and Maine, have approved gay marriage through referendum.
Gay couples who are already married need not fear. Under the full-faith-and-credit clause of the Constitution they would not suddenly be “un”-married. And states must offer reciprocity to each other’s laws. Should Nevada legalize it, gay couples can flock to wedding chapels in Vegas and still be legally married when they return home to Nebraska.
If you think it is fundamentally unfair to deny gays the right to marry, perhaps you are right. Then work to elect politicians who agree; persuade your fellow citizens. Win the argument (or move to a state where the laws are more to your liking). But if we truly are a nation of laws, having a feel-good Constitution where rights are invented out of whole cloth is dangerous for all of us. The law is the law. It says what it says. Nothing more, nothing less.
I’m Chris Conley.
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