Dear Senator Graham,
Your comment on CNN about the need to amend the Constitution in order for same-sex couples to be allowed to marry suggests that it has been a while since you read that document. I would specifically like to direct your attention to the Ninth Amendment, which states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Slavery may have required the passage of the 13th Amendment in order to be abolished (although President Lincoln did take it on himself to proclaim the slaves in the Confederacy free, without an act of Congress, much less a Constitutional amendment). However, if that was the case, it was because the rights of enslaved people were specifically denied in the Constitution until that point.
The Constitution does not state that anyone has a right to marry. It says nothing about marriage whatsoever. Nevertheless, the Supreme Court has affirmed 14 times that the freedom to marry is indeed a fundamental right, an affirmation with which I trust you agree, as you are not arguing that men and women may not marry each other. As a fundamental right, marriage can be limited only when there is a compelling state interest; for example, the state’s interest in protecting children means that children cannot marry nor be compelled to marry.
Men and women have been marrying each other in this country for over 200 years without the Constitution saying a word about their right to do so. The reason is obvious: the Ninth Amendment. So I would like a clearer explanation from you of why two women or two men cannot marry until they get a special mention in the Constitution.
Perhaps the issue is not that you are unaware of the Ninth Amendment, but that you are simply seeking to raise the bar for a right that displeases you, now that courts, legislatures, governors, and public referenda in many states have affirmed it.
Rev. Amy Zucker Morgenstern