No, that would be a violation of free speech (just as with your previous example where 51% of a state believes women shouldn't speak). I completely agree that the federal Constitution applies to states. What I don't believe is that banning SSM, or rather, defining marriage as one man one woman, is a violation of the Federal Constitution.
The problem is the body with the power to interprit the Constitution, the SCOTUS, found that marriage IS a constitutionally protected right. Which means it's as protected from being violated by the states as Free Speech is.
I think you have missed my argument. I am saying that homosexuals as a minority are not protected under the Constitution nor is any sexuality.
And you're incorrect based on legal precedence as evidenced by the concurring opinion in
Lawrence v. Texas or the ruling in
Romer v. Evans. You can state that they SHOULDN'T be, but that's a different argument.
Also, statements fail to address the other point of my post which was suggesting that the issue could be completely seperated from the notion of "homosexuals" at all and be looked at by gender.
States do have rights, what I said is that it would be tyranny to tell a state that has legally defined marriage as one man one woman (which in my view is not a violation of the Constitution) would be tyranny where the Federal government steps on the right of the states.
Requiring that the States make their laws in accordance with the Constitutional requirements of Equal Protection is no more tyrannical than saying states must make their laws in accordance with the Constitutional requirement of free speech.
The states have the authority to define marriage, they issue marriage certificates. The Federal government does not.
I've never stated that opposition to those facts. They do have tha authority....but that definition MUST be constitutional in nature.
I believe that DOMA is a violation of the Constitution and the rights of the states because it limits states that allow SSM. Federal marriage benefits in the workplace and other instances need to be given to legally married couples for that state, the federal government defining marriage and withholding those benefits violates the state's right to define the terms of marriage for that state. In this instance, DOMA is tyrannical. The opposite is also true, if the Federal government were to mandate that all states recognize SSM that would be tyrannical, it is overstepping it's boundaries and powers.
I'll be honest in stating I don't know a great deal about DOMA so can't speak to it in the specific sense.
As to your hypothetical argument which I have already addressed. If a state goes back to denying interracial marriage on the state Constitutional level that is illegal under the Federal Constitution because it violates rights based on race.
Your argument makes no logical sense then. The Constitution no more clearly states that Race is protected then it states Sexual Orientation or Gender is protected. You are simply deeming that you'll adhere to judicial precedence in one case but ignore it in another. Which if that's the way you want to go...fine. But don't sit here and try to imply to me that your argument is based off the notion that Race is clearly a constitutionally protected class but sexual orientation isn't when they both are protected for the same reason...judicial precedence.
So if I'm understanding you now....your argument is that Marriage is a constitutional civil right, and that there is a Constitutional requirement for Equal Protection of the Law, but that equal protection applies to Race but doesn't apply to homosexuals because........?
The Federal government should not tell them what is or is not marriage and enforce such a thing because it violates state rights
It violates states rights no more than the Federal Government telling them what is or is not a marriage in the case of race since it's based on the exact same constitutional principle.
Also, you've still not addressed the notion of Gender Inequality...which is what I stated
I actually argue based off of, not sexual orientation discrimination. Under the law the man is able to do something a woman can not and vise versa. Stating "Well people voted that they want it that was" is not a legally viable "important state interest".