This means, of course, that it is time to draw a line in the sand, label that line “THE TENTH AMENDMENT,” and say lots of stuff about “states’ rights.” This is, in fact, what Oklahoma Representative James Lankford did just this week:
“The Tenth Amendment to the U.S. Constitution states, ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,'” Lankford said. “Both the State of Oklahoma and the people of Oklahoma have spoken on this issue, and the decision remains clearly within their constitutional bounds.”
I am fairly sure that this tactic is not going to work because, as it turns out, there are a number of things in the Constitution that come before ten. Here are three of them:
Four Comes Before Ten
The Fourth Article of the Constitution contains the Full Faith and Credit Clause, which reads: “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.”
This means that even when states have different laws about things like marriage licenses, divorce, or driver’s licenses, they are still bound to honor actions that are sanctioned by other states. A couple divorced in Nevada does not become remarried when they go back to California. Neither can a couple married in California all of a sudden be unmarried when they move to Nevada. This is part of what it means to be a country.
This does not mean that every state has to perform same-sex marriages if other states do. But, it does mean that they will probably have to recognize marriages performed in other states. And, once this happens — once any couple can go across the border for an afternoon and come back married — states will have little motivation for continuing to fight for their own unique marriage laws.
Five Comes Before Ten
The Fifth Article of the Constitution sets out the process for Amending the Constitution and stipulates that any amendment passed according to the designated process becomes a part of the Constitution with as much force as any other part.
The amendment process has been used very infrequently, but it was used once in a way that completely changed the relationship between the states and the federal government. The Fourteenth Amendment states, among other things, that all citizens are entitled to “equal protection of the laws” and that no state can say otherwise. And it specifically grants the federal government the power to enforce this article.
This could not be more relevant to the marriage debate. If the federal courts determine (as at least two of them now have) that marriage to a partner of one’s choice is a matter of equal protection under the law, then, under the terms of the Constitution, it ceases to be a states’ rights issue. Period. Since 1868, states have not had the constitutional authority to do things that the federal government defines as discriminatory.
Six Comes Before Ten
In the Sixth Article of the Constitution we find the Supremacy Clause: “The Constitution, and the laws of the United States which shall be made in pursuance thereof . . . shall be the Supreme Law of the Land.”
This was actually a compromise at the Constitutional Convention between James Madison, who wanted to give the Federal Congress a veto over all state laws, and the Southern States, who wanted language resembling the Second Article of Confederation, which made all states sovereign entities. Under the Supremacy Clause, states have the right to pass laws in a wide variety of areas, but they do not have the right to pass laws that contradict federal laws that have been ruled constitutional by the courts.
The Supremacy Clause doesn’t mean that we can’t have federal and state definitions of marriage. It does mean, however, that we can’t have federal and state definitions of things like “discrimination,” “privileges and immunities,” and “equal protection under the law.” These are values that the Constitution — at least since the Fourteenth Amendment — makes the specific province of the federal government.
The Tenth Amendment is an important part of America’s federal system of government. But it is not the only part. Between 1776 and 1789, the Thirteen Colonies were governed by an instrument — the Articles of Confederation — that made each state a sovereign entity bound together in something like a mutual defense pact. This didn’t work very well, so a bunch of very smart, very committed fellows got together and wrote us a Constitution. And now we have a country.