Why Congress Can t Make A Law Defining Marriage As Between A Man and A Woman?

And Conversely Why States Can t Deny Homosexual Couples the Same Rights as Heterosexual Unions
I would like to begin this discussion with the duties of Congress. It is important to start here because the basis for Congress authority must be established and the Constitutional duties of Congress defined.
Section. 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow Money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; To establish Post Offices and post Roads; To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; To constitute Tribunals inferior to the supreme Court; To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. 1

After having determined the foundation of the US Constitution, the founding fathers and state representatives determined it was necessary to go further in outlining the powers of the federal government as well as its restrictions. This was done by adding the Bill Of Rights prior to ratification of the Constitution. It is interesting to note that the very first Amendment added in the Bill of Rights addressed religion symbolizing the importance of protecting these rights to the founding fathers:
Amendment I:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. 2

This is where we must begin our discussion of marriage . In order to determine whether marriage is a religious concept, adopted as a commonly used term; or a secular concept, we must turn to the law of first mention or precedence. This is easily established in our case because the United States was not established until the 1700 s. Our Constitutional process began in 1787. Therefore we have a date from which to measure. Was the word and concept of marriage established prior to 1787? According to Memories of Ancient Israel: The oldest surviving Christian Bibles are Greek manuscripts from the 4th century; the oldest complete Jewish Bible is a Greek translation, also dating to the 4th century. The oldest complete manuscripts of the Hebrew Bible (the Masoretic text) date from the Middle Ages. 3 Based on these dates, we know the Bible precedes the age of our nation and its Constitution. The second step is to determine whether or not the Bible speaks on the subject of marriage and/or is the word marriage used. This is important because defining the word marriage is specifically in question in several states across the US. There are at least 19 times when the word marriage is used in the Bible in 18 verses. Examples of marriage in the scriptures include:
For as in the days that were before the flood they were eating and drinking, marrying and giving in marriage, until the day that Noah entered into the ark. Luke 20:34 And Jesus answering said unto them, The children of this world marry, and are given in marriage. The other term commonly used in relationship to marriage is wedding. There are seven references for the term wedding in the Bible as well. For example: Mat 22:10 So those servants went out into the highways, and gathered together all as many as they found, both bad and good: and the wedding was furnished with guests.

Mat 24:38

Both commonly used terms for marriage were indeed established and used well before our Constitution and our nations establishment in a religious context. Therefore they are unable to be constitutionally defined based on the First Amendment. Furthermore, our government cannot interfere with any rights given by religious organizations to whomever their doctrine determines may be married. In short if a church determines that they will marry homosexual couples, they can do so without recourse because the Constitution forbids the federal government from defining marriage as anything since it is a religious term already defined and because Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. Church recognition however is not enough for State recognition of any union whether heterosexual or homosexual. That is why all couples who wish to have their marriage legally recognized must get a license from their state.

So, does that mean that the founding fathers intended to prevent same sex couples from living together and having rights? Absolutely not, nor does it preclude giving homosexual rights to live together as a couple with the same rights as a heterosexual married couple. In fact, our Constitution dictates they must have equal rights based on the Equal Protection Clause: AMENDMENT XIV Passed by Congress June 13, 1866. Ratified July 9, 1868:
Note: Article I, section 2, of the Constitution was modified by section 2 of the 14th amendment. Section 1: 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.

Based on the 14th Amendment, states must grant the same civil union licenses to homosexual couples that it grants to heterosexual couples within its borders. However based on the First Amendment, states cannot use the term marriage or wedding as these are religious terms that predate our nation; and States cannot mandate that religious organizations or clergy perform ceremonies that violate their religious beliefs. Based on US laws and system of government, it is not necessary that a Church or religious organization recognize a union for a couple to have legal rights; only that the couple be recognized by the state. Otherwise, nonreligious heterosexual couples would have to be married by a religious official after obtaining state documents as well in order for their unions to be considered legal. All the rights inherent federally are automatically given based on current laws we have in place. For example, IRS law states that citizens are to choose their marital/filing status for tax purposes based on the status used in the state in which they reside. Therefore a homosexual couple recognized in New Jersey for example would automatically be considered to have the same rights federally as a heterosexual couple from the same state. Following the US Constitution to the letter would bring resolution and clarity to the issue of how to give all our citizens the rights guaranteed them by the US Constitution and our Founding Fathers. While it is correct that we cant constitutionally define marriage because it is a religious concept that predates our Union; It is also true that we cannot deny legal and equal rights to a segment of society based on the Equal Protection Clause or the 14th Amendment of the Constitution.
1

http://archives.gov/exhibits/charters/constitution_transcript.html http://archives.gov/exhibits/charters/bill_of_rights_transcript.html
Davies, Philip R. (2008). Memories of Ancient Israel. Westminster John Knox Press. p. 7. ISBN 9780664232887.