To ensure that the government remains “of the people, by the people and for the people,” the Constitution of Mississippi requires that amendments be ratified by a majority of the state’s electors. That same constitution makes Mississippi a part of the United States, in part by acknowledging the U.S. Constitution’s claim to being the supreme law of the land.
Last Election Day, Mississippi’s voters, along with voters in 10 other states, ratified amendments limiting marriage to an act “between a woman and a man.” Furthermore, Mississippi’s amendment, along with those of seven other states, forbids recognition of such marriage contracts granted in other states.
On Election Day, about 86 percent of voters supported the amendment in the statewide constitutional referendum. On Election Day, more than 900,000 Mississippians (and many voters in other states as well) cried out in one voice, “U.S. Constitution? Who cares about that?” Because, on Election Day, more than 900,000 Mississippi voters supported an amendment that is clearly unconstitutional, a violation of the U.S. Constitution’s full faith and credit clause-“full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.”
The first part of the amendment is a wrongheaded attempt to legislate morality and impose religious beliefs-since marriage is largely a religious institution-and so unnecessarily limit people’s freedoms. However, it is within the state’s power to regulate its own public acts. The second part, though, explicitly and unconstitutionally denies recognition of other states’ public acts.
Some may plead ignorance about the clause-ignorance they have no one to blame but themselves. Ironically, many people will gladly tell you they are “proud to be an American,” but have little or no conception of what the keystone of our government-the Constitution-says. Of course, the voters’ ignorance expands to Mississippi law as well. According to the Associated Press, a law banning same-sex marriages has been on the books since 1997.
Of course, it is impossible to know everything about everything. Thus, the United States is set up at all levels as a democratic republic, allowing voters to entrust government to a smaller group of people who may pursue the issues full time and so gain a deeper understanding of those issues. On broad or vital issues, such as constitutionality and freedom, voters should educate themselves thoroughly-an ignorant vote is far worse than no vote at all. The Constitution is fairly easily digested at about 1,500 words, or about the size of two opinion articles. Read it. Learn it. Know it.
The state legislators are even more responsible for this victory of ignorance. There is already a law on the books that legislators should know. They must be held to higher standards than the common voter. Ensuring effective, efficient, constitutional government is the job they are paid for with taxpayer money.
Those actually familiar with the full faith and credit clause may claim that the new amendment falls into the so-called “public policy exception,” an ad hoc interpretation created by the courts granting states a power specifically denied to them by the clause. A state may fail to recognize acts, etc. of another state if such acts violate the first state’s “public policy”-a poorly defined term that might mean “government actions and laws.” Effectively, the exception renders the first line of the clause, quoted above, meaningless-not recognizing the public acts of another state can be viewed as public policy. Clearly, the public policy exception is not valid as it nullifies rather than limits the full faith and credit clause.
While the applications of the exception are often reasonable, they still are clearly violation of the clause and the courts are going outside of their power when applying it. Instead of amending constitutions to define marriage, voters and legislators should use amendments to actually improve our government, possibly by modifying the “full faith and credit clause” to agree with the public policy exception. Until then, though, the new amendment remains unconstitutional and should be struck down on those grounds.
As a final defense of the amendment, some may claim that it is the courts’ duty to determine constitutionality. To an extent, this is true. The courts should determine cases of dubious constitutionality. Today, though, many legislators feel welcome to pass anything and everything, even if it clearly will be overturned. While this might win them votes or funds from equally unscrupulous supporters, it clogs the courts with unnecessary cases, costing both money and time, and ignores the responsibility of elected officials to “defend and uphold the Constitution.”
Gross misuse of constitutional power to legislate morality and religion is sad enough, but the fact that more than 900,000 Mississippi voters (and two-thirds of the state Legislature) would choose to ignore the U.S. Constitution to do so is enough to damage one’s faith in the democratic process.
Nathan Alday is a senior aerospace engineering major. He can be reached at [email protected].