You’ve been hearing about it everywhere. The Supreme Court is going to decide on Proposition 8 and DOMA. You’ve heard that these are historic cases. But what on Earth are these things? And why is any of it important?

The Defense of Marriage Act, or DOMA, says that same-sex couples can’t have the same government rights and privileges as one man/one woman couples. California’s Prop 8 outright bans same-sex marriage. Depending on the Court’s decision, gay marriage could become legal or illegal on a federal level. Or, the Supreme Court could decline to comment, which would be a cop-out.

While many people have been arguing over whether or not gay marriage is right (it is), few people have been discussing the legal side of it. Nowhere in the Constitution does it say anything about marriage, gay or straight. So, technically, if it isn’t specifically stated to be illegal or legal, then people should be able to get married to whomever they want. However, there’s another side to this. In the Constitution, it says that anything not stated within that document will be left up to the states to decide. Considering that, if a state (in this case, California) wants to make a law banning gay marriage, they can.

So what the Supreme Court is looking at isn’t a matter of whether or not same-sex couples can get married, but whether if it is legal to make laws defining marriage. And since the Constitution doesn’t say anything about the subject, states technically can.

However, that means unless a state outright bans same-sex marriage, then there is nothing in their law book to say same-sex marriage can’t happen. So really, if a same-sex couple wanted to get married in a state that doesn’t ban it, they can. They can go to a court house and get married. Now, of course, since we have a separation of church and state, if a same-sex couple is rejected by a church, then the government can’t really do anything. But that’s when you throw an epic outdoor wedding across the street from the church and have a licensed person wed you. No, I’m serious. Just about anyone (within reason) can get a license that allows them to wed people.

But that’s only covering Prop 8. DOMA is its own beast: a federal law. However, the Obama administration has declared the part of DOMA that bans same-sex marriage to be unconstitutional. And here we are.
The Supreme Court will be announcing their verdict in July of this year. Though, I’m sure the debate will continue regardless of what the outcome proves.

By Meghan Beatty

One response to “Why DOMA and Prop 8 are unconstitutional”

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