Allow the states to define marriage

I wrote this petition for Change.org on January 5th, but nobody has signed it yet:

Our government is based on federalism which tries to strike a balance between a centralized federal government and the many states. The founding fathers wanted the states to have some autonomy but they knew from experience that the entire system would collapse if there wasn't a stable federal government with clearly defined roles. They wrote the Constitution around the idea of a limited federal government.

Article I, Section 8 of the U.S. Constitution lists the enumerated powers that Congress has. The 10th Amendment states that “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.” And the 9th Amendment reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Article. VI, Clause 2: "This constitution...shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby." Article. VI, Clause 3: "all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.” Article IV, Section 4: “The United States shall guarantee to every State in this Union a Republican Form of Government.”

It is not known how old the institution of marriage is, but it has been around for at least 5,000 years and probably for thousands of years before that. Marriage is as fundamental a right as property, religion and self-defense and predates any known government. The primary purpose of marriage is to conceive and raise children in a stable environment and provide a safe method of sexual intercourse.

The founding fathers would have considered marriage so essential and obvious a part of human society that it was unnecessary to mention it in the Constitution. They would have wanted states and the people to decide the details of the issue, which has generally been the case for most of our history.

There is a type of marriage that is permitted in 20 states and either banned or restricted in 30 states, but nobody is claiming it as a civil right and the federal government isn't forcing states to recognize it. What is it called? Cousin marriage and it used to be far more common and is still widely practiced in some countries. Albert Einstein married his cousin and Charles Darwin married his cousin. If you do your genealogy back far enough you are likely to find some of your ancestors married their cousin.

What about interracial marriage? Race has been an important part of our history and Constitution; it is sometimes difficult to determine a person’s race; it is discriminatory to claim that a man can marry a woman but a different man is not allowed to because of his skin color; and it has always been permitted in parts of the country. Pennsylvania repealed its anti-miscegenation law in 1780. New Jersey, Connecticut, New Hampshire, New York, and Vermont never banned interracial marriage.

During oral arguments about California's law Justice Scalia asked their Republican lawyer Ted Olson when the 14th Amendment started protecting same-sex marriage and he responded by saying: "It was constitutional when we -­as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that -­ There’s no specific date in time. This is an evolutionary cycle." Some groups are claiming that the 14th Amendment has always protected same-sex marriage, but that is a ridiculous anachronism. There is no evidence that any member of Congress during the 1800s had considered such a thing. In the United States, same-sex marriage was not invented until 2003 by a Massachusetts court.

If same-sex marriage is such an inherent right, why did it take the Democrats until 2012 to add it to their party platform? Why did it take until 2012 for Maine, Maryland, and Washington to become the first states to legalize same-sex marriage through a ballot initiative? In those three states opposition to same-sex marriage was more popular than Romney. In all previous cases, same-sex marriage was permitted either through court mandate or by a legislature.

The Equal Protection Clause of the Fourteenth Amendment is used to justify same-sex marriage. This is what the text reads: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The amendment does not say anything about equality based on a sex. If it really does provide equal treatment based on sex, then why do we permit courts to overwhelmingly discriminate against fathers and husbands in divorce and child custody cases? Also, there is nothing in the Constitution about sexual orientation. How does creating a separate type of marriage for gays promote equality? Doesn't anybody remember Plessy v. Ferguson? There is not a single state that bans gays from getting married and gays have been getting married since our Independence in 1776.

Polygamy (although illegal), cousin marriage, and interracial marriage have always existed in the United States. Is it really fair to put same-sex marriage in the same category? In 2006, the New York Court of Appeals ruled that the New York state constitution does not require same-sex marriage rights. In the 1971 case of Baker v. Nelson, the Minnesota Supreme Court ruled that a state law limiting marriage to persons of the opposite sex did not violate the U.S. Constitution. The case was appealed to the United States Supreme Court and in 1972 they dismissed the appeal "for want of a substantial federal question" which was supposed to set a legal precedent.

Citizens have been voting on local issues since the period of the New England Colonies. Voting is a very important right that is woven throughout the Constitution. We are told how to elect the President and Congress and in the Amendments we learn who is eligible to vote. As long as you are NOT trying to eliminate a right that has always existed or is clearly listed in the Constitution, then it is very American to allow citizens to vote on an issue. Twice in California voters approved a ballot initiative defining marriage, in its most common form, between one man and one woman. The first ballot received 60% approval and the second received 52% (although it's estimated that the number could have been as high as 54% if not for a convoluted question). The government of California permitted the citizens to vote on this important issue and then when the desired outcome was not achieved refused to defend it.

Cases have arisen of people losing their Constitutional rights because they oppose same-sex marriage. Why should a religious group be forced to adopt children to gay couples? Don’t they have any religious rights? Why should a baker be forced to make a cake for a same-sex wedding? Why should a photographer be forced to take pictures of a same-sex wedding? Why should dating sites be forced to permit same-sex matching? Don’t these business owners have any property rights? The 5th Amendment states that: "No person shall be...deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." Property rights are one of the most fundamental factors in determining economic prosperity.