Liberty Counsel Action
Marriage, the Tenth Amendment, and the Natural Law
March 13, 2014 ~ 0 comments

By: Mark Trammell, Esq.



Recently, Representative Randy Weber introduced the “State Marriage Defense Act of 2014.” Shortly thereafter, Senators Mike Lee and Ted Cruz introduced its companion bill in the United States Senate. The bill is simple. In short, it states that for the purposes of federal benefits, federal agencies will determine whether a marriage qualifies for federal benefits based upon the domicile of the person filing for marriage benefits, not the state in which the marriage ceremony was celebrated.

Before I explain further, let me preface by saying that I appreciate and commend the intent of these legislators. Without question, these men are dedicated to protecting the Constitution and defending the institution of marriage. However, the State Marriage Defense Act of 2014 is not the answer.

The Natural Law

The institution of marriage is intertwined within the very fabric of the Natural Law. Shortly after the Court’s decision in United States v. Windsor, where the Court held that Section 3 of the Defense of Marriage Act was unconstitutional, over 200 leaders signed a coalition statement that explains the relationship between marriage and the Natural Law. Among the signatories are pastors, university presidents and deans, chairmen, authors, activists, editors, presidents of nonprofit organizations, journalists, and even a former governor. The statement reads,

“We affirm that marriage and family have been inscribed by the Divine Architect into the order of creation. Marriage is ontologically between one man and one woman, ordered toward the union of the spouses, open to children and formative of family… Marriage as existing solely between one man and one woman was not an idea manufactured by religion or civil government. It precedes both. Though affirmed, fulfilled, and elevated by our faith, the truth that marriage can exist only between one man and one woman is not based on religion or revelation alone, but on the Natural Moral Law, written on the human heart and discernible through the exercise of reason.”

As a component of the Natural Law, authored by God, the institution of marriage is beyond the ability of mankind to change. Simply put, it is a law given to us by God and since God’s ways are justice (Deuteronomy 32:4) and His ways are higher than our ways (Isaiah 55:9), God’s law is, as Alexander Hamilton wrote, “superior in obligation to any other.” This was the same idea embodied in the Civil Rights Movement, as evidenced when in Dr. Martin Luther King, Jr.’s “Letter from Birmingham Jail,” when he said, “A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of Harmony with the moral law.”

Our nation was founded upon the idea that there are certain rights and laws that man receives from God, not government. It was this idea that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights.” These “unalienable Rights” that are “endowed by their Creator” are recognition of the Natural Law authored by God. If that were not the case, then there would not have been any basis for the American Revolution.

The Tenth Amendment

Here, with regard to the State Marriage Defense Act of 2014, proponents of the bill claim that the states have the authority to define marriage as they see fit, or by the majority vote of a state’s electorate. In his press release, dated January 9, 2014, Rep. Weber stated, “I drafted the “State Marriage Defense Act of 2014” to help restore the 10th Amendment, affirm the authority of states to define and regulate marriage, as well as, provide clarity to federal agencies seeking to determine who qualifies as a spouse for the purpose of federal law.” In what to me looks to be identical press releases offered by Senators Lee and Cruz, Senator Lee writes, “How a state should define marriage should be left up to the citizens of each state.” Senator Cruz stated, “We should respect the states, and the definition of marriage should be left to democratically elected legislatures, not dictated from Washington.”

The Tenth Amendment, which Rep. Weber expressly references, 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.” Logically, to delegate or reserve something for someone or something else, one must first possess what one desires to delegate or reserve. In other words, I cannot give someone a gift if I do not first possess what I intend to give away.

Here, in regard to the State Marriage Defense Act of 2014, the same truth applies. The Constitution only can reserve for the states what it owns or has authority to convey. As such, the Constitution reserves for individual states what it has not delegated to the United States. For one to state that the Tenth Amendment reserves the authority for states to define marriage according to the will of the citizens of that state is to say that the Constitution had authority over the Natural Law. Such a conclusion is contrary to the essence of the Natural Law and is contrary to Scripture. It is to say that a document, the Constitution, which was created by the Founding Fathers, had authority over the Bible. The logical conclusion then would be that our jurisprudence is based on moral relativism, which cannot be true.


The State Marriage Defense Act of 2014 does not reconcile with the Natural Law. Because the definition of marriage is a component of the Natural Law, and the Natural Law is of higher obligation than man-made law (Ex: Federal law, State law, etc.) then the statement that marriage should be “left up to the citizens of each state” or “left to democratically elected legislatures” is in stark contradiction to the Natural Law.

Bottom line, the Tenth Amendment doesn’t give states the jurisdiction to amend the Natural Law. Ultimately, citing a Tenth Amendment right for citizens or elected legislatures to redefine marriage is harming marriage, not defending it because such a statement endorses moral relativism. If our jurisprudence is based on moral relativism, and under the Tenth Amendment a state can redefine marriage by popular vote, then marriage can be anything so long as enough people vote for it. Taken a step further, if moral relativism were the basis of our jurisprudence, then anything that is illegal today could be legal tomorrow, provided that it is the collective will of the electorate. Although the State Marriage Defense Act of 2014 seems simple, the ramifications of it are wide-reaching and ghastly.