A closer look at the Bill of Rights could give same-sex marriage advocates the tools they need to ensure marriage equality nationwide.
In the controversial 1965 Supreme Court decision Griswold v. Connecticut, the court ruled that there exists a "right to privacy," striking down a Connecticut law prohibiting the use of contraceptives.
A quick reading of the Bill of Rights shows that no such language actually exists in the document. So how did the court come to the conclusion that we have this so-called "right to privacy"?
In fact, many of our freedoms are not mentioned in the Bill of Rights. For instance, few would argue that we do not have the right to travel or to enter into contracts or even the right to intoxicate ourselves, despite the fact that no such amendments address this issue — except for one.
The Ninth Amendment states, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
In other words, the fact that the Constitution lists specific rights in the previous eight amendments does not mean that those are the only rights we, as individuals, have. It also means that the government should not use the Bill of Rights as a complete list of rights in order to deny us other freedoms.
Supporters of Proposition 8 are using the 10th Amendment to argue that the state of California has the right to decide on same-sex marriage. However, the 10th Amendment does not mean that states can create laws that violate other rights.
The rights of states to decide laws end where individual rights begin.
And, of course, no court yet has ruled that the Ninth Amendment creates a right to marry. However, by pairing the Ninth Amendment with the equal protection clause of the 14th Amendment, proponents of same-sex marriage might have a good chance to achieve their goals if this issue reaches the Supreme Court.
If the Fourth Amendment prohibits the state from coming into your home without reasonable cause, does this not imply that the government should keep out of your sexual business as well?
Because the First Amendment prevents the government from respecting an establishment of religion, does this not imply that the government refrain from using religion as a basis for defining marriage?
And because marriage is actually a religious institution, does this not imply that the government should abstain from preventing religious institutions from performing marriage ceremonies for whomever they choose, regardless of sexual orientation?
By using the Bill of Rights as their guide, same-sex marriage proponents should be successful in arguing for marriage equality if this case makes it to the high court.
In the meantime, things are looking good.
