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First, a small history lesson.
The Bill of Rights was added to the Constitution after its ratification to fulfill a compromise made between the Federalists (who supported the new constitution) and Antifederalists (who opposed the new constitution) during the ratification process. Both were concerned that the national government created by the Constitution would be too powerful. The Federalist thought this problem was dealt with sufficiently through (1) structural restraints--the "separation of powers" and "checks and balances" you learned about in school, and (2) the underlying assumptions of a "limited constitutional government."
Limited government has become an all but forgotten concept in our modern times, so, please let me explain. The Founders felt that by creating a written constitution with a short list of specifically enumerated powers that were delegated to the Congress (and thus to the national government as a whole--see Art. I sec. 8 of the Constitution) that they would severely limit the powers of the government. The basic assumption was, "if it isn't on the list, you can't do it." Thus, if the list didn't grant Congress the power to regulate religion, then they didn't have the power to do so. If the list didn't grant Congress the power to abridge freedom of speech, they didn't have the power to do so. Etc.
But such limitations were not good enough for the Antifederalists. They believed quite rightly that the new national government would constantly seek to expand its powers beyond those that had been specifically granted to it. They believed that in addition to a list of what the national government can do, there should also be a list of what it can't do. What they wanted was a bill of rights that would list what areas the national government was supposed to stay away from.
At first, the Federalists opposed the inclusion of a bill of rights. They had two primary objections. First, it is impossible to include on such a list everything that the government can' do. It's much better to have a list of what the government can do--which was already in the Constitution. Second, if a list of rights was included, (1) people would start to think that they only have the rights mentioned on the list (and that is exactly what has happened), and (2) they would completely forget the assumption of limited constitutional government and begin to think that the national government can do anything that it is not prohibited from doing by the bill of rights (and this is exactly what happened too).
Well, despite their objections, the Federalists finally gave in and agreed to add a bill of rights to the Constitution. This change allowed them to secure enough Antifederalist support to get the document ratified.
When the first Congress then met after the successful ratification and took up fulfilling the promise of adding the Bill of Rights, they were still faced with the problem of people wrongly assuming that they only have those rights that are include in the Bill of Rights. They tried to deal with this problem by including the IXth Amendment.
The whole point of the IXth is to say that we have other rights (and, inversely, the national government lacks power) in areas beyond those listed in the previous eight amendments.
But, this still leaves a big problem. What are these other, unlisted rights? And who decides what they are?
Well, there is an important clue to answering these questions that is found in the language of the amendment. Notice that the amendment says "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others RETAINED by the people." In other words, these "other" unenumerated rights were ones that the people kept or "retained", while they gave some other powers over to the national government (such as the power to tax).
But there is a problem here that too few people recognize. In order for gay marriage to be one of the unenumerated rights that is protected by the IXth Amendment, it must be a "retained" right. But for you or me or We the People to "retain" something, we must have it in the first place. You can't retain or keep something that you don't already have. Thus, in order for gay marriage to be a right that was retained (or kept) by the people when the Constitution was created and the Bill of Rights added (and thus covered by the IXth Amendment), it has to be a right that the people had when the amendment was added to the Constitution. Quite simply, if gay marriage was not "right" that people had and "retained" on Dec 15th, 1791, then it is not covered by the IXth Amendment. Gay marriage cannot be a "right" that was "retained" if it wasn't a right that the people had at the time when they were retaining them.
Well, was gay marriage a "right" that the people "retained" in 1791? Of course not. No one can doubt that if we got in a time machine and went back to 1791 and took a survey, a majority of Americans (probably 99% of them) would say that they did NOT have a right to engage in gay marriage. Well, if it wasn't even a right back then, then it could not be one of the rights that the people "retained" now could it?
In short, there is absolutely no conflict between the IXth Amendment and anti-gay marriage legislation or amendments.
But even if there was a conflict, more recent amendments supersede older passages. So an anti-gay marriage constitutional amendment would simply overrule and displace any previously added constitutional passages within the narrow scope of its subject matter. Such an amendment would overrule the IXth (if there was a conflict--though there isn't), the Xth, or even the XIVth and its Equal Protection Clause.
It is impossible for an addition to the Constitution to be "unconstitutional." Whatever was most recently added wins.
But, if we go back to one of my first points about limited constitutional powers, we must conclude that Congress was never granted the power to regulate marriage. It is not on the list found in Art. I, sec. 8. So, I believe, DOMA should be considered an unconstitutional overextension of the powers of Congress. Issues such as marriage were clearly left within the powers of the state governments at the time of the Constitution's ratification.
Nonetheless, this does not mean that gay marriage must be allowed nationally either. The Founders certainly would say that it was left as a matter for the individual states to decide. And this does not mean that one state can force its will on another. The Founders would have been outraged to think that courts might make use of the Full Faith and Credit Clause found in Art. IV, sec. 1 to force states which don't want gay marriage to accept it. Such a move would have been viewed as an extreme abuse of judicial authority. The same goes for those legislators who wrote and ratified the Equal Protection Clause of the XIVth Amendment. They would be stunned if they were told that their amendment somehow created a national right to gay marriage. They would call such an interpretation insane.
The only way to find any protection for gay marriage in the Constitution is by grossly distorting the words and intended meanings that are found there. No honest judge could ever find such a right buried in that text.
It is an issue that should be resolved state by state. If states want to continue solely recognizing hetro marriage, let them. If states want to recognize gay marriage, let them. And if you don't like what your state is doing, lobby the legislature to change its collective mind or move to a state where you better fit in. But please don't go to court and ask judges to abuse their powers by unilaterally rewriting the Constitution to your liking. There is only one legitimate way to change the Constitution, and that is the amendment process outlined in Art. V.
Sory I went off for so long, but peopel--particularly judges--who misread the Constitution to force their own beliefs into it really bug me.
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