But you do have to explain or give some reason for the takeover that makes it appear that there is no takeover. The The Fifth Amendment to the U.S. Constitution is one of the means. It states:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
Pretty straight forward, isn’t it? The law should be fair to everyone. So where are all these rights to marriage that same-gender people say they have a constitutional right to? It’s not that simple. It’s all based on one small clause in that amendment: that no person shall “be deprived of life, liberty, or property, without due process of law.” How is not having the right to marry someone of the same gender a deprivation of life, liberty, or property without due process of law?
Due process is what a legislature goes through to enact a law. Typically, it goes to both houses of the legislature for voting, then it goes to the chief executive, the governor of a state or the president of the U.S., then it becomes law. If it’s a criminal law, you’re supposed to be able to properly, adequately, and legally defend yourself when charged with a crime. All that is “procedural due process.” So, what if the legislature enacts a law that says children can’t stay with their natural parents, then what happens? The courts would have to enact the law, and even with procedural due process, the state could take away your children. Thus, procedural due process would not protect you from a substantially evil law. Surely that can’t be right. But the courts can’t just use their personal opinion to overrule a duly enacted law. The courts have to respect the legislature to some extent. So where do you draw the line?
In American, some laws violate the rights “implicit in the concept of ordered liberty.” For example, the Bill of Rights delineates such, like not having soldiers quartered in your house or not having the police barge into your personal space without a warrant. But prohibiting the taking of your children away from you for no reason other than that the civil government wants to do so is not in the Bill of Rights. Other laws, like restrictions on the political process (e.g. the rights of voting, association, and free speech); and the rights of “discrete and insular minorities” get strict scrutiny. Then, if not stated explicitly in the Constitution, the U.S. Supreme Court usually looks first to see if there is a fundamental right, by examining if the right can be found deeply rooted in American history and traditions.
Here’s how it works. You have to become a protected class. Otherwise the proponent of the change in the law has to prove there’s “no rational basis” for the law, which is a very large hurdle to overcome. But if the law affects a fundamental right or your group that’s affected is classified as a protected group, like a racial or ethnic group, then a court applies “strict scrutiny” instead of “rational basis” scrutiny in analyzing the law. In that case, the burden is on the law-maker, typically a state, which has to prove that it had a compelling state interest in creating the boundary, in violating a fundamental right. Also, the court asks whether the law in question is narrowly tailored to address the state interest.
All laws discriminate. You can’t go here, you can’t join this, you’re not entitled to this benefit, on and on. It is only those laws that deny a fundamental right that are questionable. So, when did same-gender people get the fundamental right to marry each other? It’s not in the U.S. Constitution. It’s not deeply rooted in American history and traditions. There is no basis for it, and the Supreme Court's DOMA decision, stating essentially that the federal government had no rational basis for limiting marriage to a man and a woman, stated no basis either.
No actual, legally defensible basis, something the highest court in the land is supposed to do when it strikes down a law enacted pursuant to the U.S. Constitution, Article VI (in part): "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; shall be the supreme Law of the Land." Notice that clause says nothing about the U.S. Supreme Court striking down a law. Which should carry more weight? A law passed by over 400 congressmen and signed by the President of the U.S. in accordance with the Constitution's requirements? Or a court's five-member majority's personal opinions?
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