What does the Constitution of the United States

 have to say about marriage?

by Annie Wadlin, 2004

The Constitution of the United States says nothing specifically about marriage itself, so how can one say whether bans on gay marriage are constitutional?  The Constitution does, however, have a lot to say about equal rights for the citizens of the U.S., and giving credit to the judgments of other states.  It is the job of the courts to interpret the Constitution and the law, to interpret what was meant by equal rights and what exceptions are allowable.  Their interpretations allow us to conclude that bans on same-sex marriage are unconstitutional, and go against established legal precedents.

 Amendment 14 of the Constitution guarantees citizens of the United States equal rights.[1]  According to the Supreme Court, Marriage is a fundamental right, as ruled in Zablocki v. Redhail (1978).  Also, the Supreme Court recognized in 1967 that the freedom to marry is “essential to the orderly pursuit of happiness” and “one of the basic civil rights of man.”  Something is considered discrimination if it has then intent or effect of not giving a group equal rights.  The “separate but equal” laws were eradicated because even though they did not have the intent of giving inferior treatment to blacks, that was their effect.  Therefore, it is not necessary to prove that bans on gay marriage are a result of prejudice.  So in practice, not allowing gays to marry is discrimination because they do not receive the same legal benefits that married people do.  Some of these benefits include: the right of survivorship for homes; pensions, Social Security and retirement programs; joint tax returns; ability to qualify for spousal exemptions on income and estate taxes; joint insurance policies; ability to apply for immigration and residency for partners from other countries; being able to take sick leave to care for a partner, or a partner’s child; being able to make critical medical decisions, and the right to be together in crisis situations (such as a hospital emergency room).[2]

To try and lessen this gap in rights, some states have created make-shift alternatives to marriages for gay couples that provide a few of the basic rights that marriage does.  California created domestic partnerships, Vermont created civil unions, and Hawaii made “reciprocal beneficiaries.”  Reciprocal beneficiaries get more rights than domestic partnerships and civil unions, but still only receive 50 out of 200 rights awarded to married persons.[3]  Even though these agreements carry a bunch of rights, they do not include any responsibilities.  For example, if a partnership splits, there is no way to ensure that assets are divided fairly, and if a person dies and leaves their partner without support, no legal action can be taken.

The “Defense of Marriage Act” (DOMA), signed into law by President Clinton says that “No State . . . shall be required to give effect to any public act, record, or judicial proceeding of any other State . . . respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State . . . or a right or claim arising from such relationship."  This Act violates the Due Process Clause of the Fifth Amendment. 

The Due Process Clause of the Fifth Amendment says that no state shall “deprive any person of life, liberty, or property without due process of law.”  In Baehr v. Miike, a case in Hawaii, Judge Kevin Chang ruled that, “prohibiting same-sex couples from marrying discriminates on the basis of sex and is unconstitutional.” 

However, some argue that the policy of prohibiting same sex marriage does not discriminate on the basis of sex because both men and women are only allowed to marry the opposite gender.  It does not matter whether men and women are equally disadvantaged.  What matters is that there is discrimination.  For example, both blacks and whites were punished for violating laws against interracial marriage in Virginia.  In the case of Loving v. Virginia, Loving complained that the state of Virginia discriminated on the basis of race because it made people’s ability to marry dependent on their race.  Similarly, DOMA discriminates on the basis of sex because it makes people’s ability to marry dependent on their gender.  At one point in our country’s history, marriages between African Americans were not even recognized because they were considered to be only three-fifths people.[4] 

As ruled in Regents of the University of California v. Bakke, the right to equality is a personal right, not a group right – groups don’t get married, individuals do.  A person should be able to marry any person (that is, any person eligible for marriage) that he or she chooses regardless of who that person is or to what group that person belongs.

DOMA also ignores the Full Faith and Credit Clause of the Constitution.  Article IV, Section 1 states: “Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.  And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.”  There are some established exceptions to this clause.  These exceptions include: “a forum state does not have to respect the judgment of a sister state that purports to transfer title to real estate within the forum state.”  And “A state does not have to respect “penal” judgments from other state courts.”[5]   However, there is no “policy” exception.  That is, states have to enforce the judgment of other states even if they disagree with the policy behind a law on which the judgment is based.  Courts have ruled this way in Williams v. North Carolina, Sherrer v. Sherrer in which the respondent tried to claim that a divorce was not legitimate because it took place in another state, and Fauntleroy v. Lum in which J. J. Lum tried to escape financial responsibility by going to Missouri from Mississippi.  This means that if a state allows a gay couple to be married, then another state must respect their judgment, and assure gay and lesbian couples the same rights as heterosexuals.  It has not been interpreted to mean, however, that a state must adopt another state’s exact laws, just respect their judgments.[6]  DOMA ignores both the written word and the interpretation of the Full Faith and Credit Clause.  The danger of DOMA is summed up in this quote: “Hard cases make bad constitutional law—but really bad laws can unmake constitutional principle.”[7]

Often the law is distorted by the prejudices of lawmakers and jurists, and legal decisions are made for the wrong reasons.  In Craig v. Boren, it was ruled that, “classifications which discriminate on the basis of gender must be substantially related to some important government purpose.”   Some people argue that marriage should be between a man and a woman because that’s the way it’s always been done.  “Tradition” is not an important government purpose.  Neither is the desire to harm that group.  If those were accepted government purposes, sex discrimination would still be legal.  Supreme Court Justice Oliver Wendell Holmes said, “It is revolting to have no better reason for a rule of law than that it was so laid down in the time of Henry IV.  It is still more revolting if the grounds upon which it was laid down have been vanished long since, and the rule simply persists from blind imitation of the past.”[8]  In early 2004, the Massachusetts Supreme Court ruled that government attorneys “failed to identify any constitutionally adequate reason to deny [same-sex couples] the right [to marry].”[9]  In the House debates regarding DOMA, the law was justified to prevent a threat to marriage, but they never said how marriage was threatened.  The president and others of the bill’s supporters also failed to address the question of DOMA’s constitutionality.[10]

An argument similar to the “tradition” argument is that gay marriage should not be allowed because that’s not what the majority wants.  It is not the will of the people.  However, that is just not how government works.  Elizabeth Birch, director of the gay rights organization Human Rights Campaign said, “If not for courts, African-Americans would not have the right to vote, women would not have the right to vote.”  The purpose of a constitution is to protect a minority group from the wrath of the majority.  James Madison, a founding father of the Constitution, said in his Federalist Paper No. 10 that “measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.”[11]  So, just because a majority of people are against gay marriage does not mean that it is the government’s job to prevent it.  In fact, that would defy the purpose of government.

Many of these people in the “majority” that want to ban gay marriage, want to do so for religious reasons.  They think it is morally wrong, and use the “slippery slope” logical fallacy, saying things like, “If you allow two men to marry, what’s next?  Will I be able to marry my sister, or my dog?”  They say that gay marriage soils the holiness of the institution of marriage.  While they have the right to prohibit same-sex marriages within their church, they do not have a right to dictate their beliefs to the entire country.  This goes against the separation of Church and State.  Some protesters say that there is no such thing as the separation of Church and state,[12] but the First Amendment of the Constitution states clearly, “Congress shall make no law respecting an establishment of religion…”

Some arguments against gay marriage are claims that such marriages violate the purpose of marriage.  A common argument is that the purpose of marriage is to foster offspring.  However, marriage is not premised on procreation legally or otherwise.  In Griswold v. Connecticut, it was ruled that the right of marital privacy prohibits the government from interfering with efforts to actively avoid procreation.  In 1984, the Hawaii Supreme Court eliminated idea that procreation was the purpose of marriage.  They said that it was “prejudiced against the handicapped, the elderly, and others.”[13]  Alternately, just because a couple, gay or otherwise, cannot procreate themselves does not mean they cannot raise a family.  Many same-sex couples adopt or use artificial insemination.  Court cases and the Congress have failed to produce evidence that gay couples are somehow less capable of raising children, or that their doing so does harm.

Someday, we may have to justify why these rights were withheld from our citizens.  We will not find justification in the 14th Amendment, nor in the Full Faith and Credit Clause of our constitution.  Other arguments may seem weak in the light of history, and have no constitutional basis, since marriage is not even mentioned in that document.  Society may even find that a compelling interest is served by gay marriages in fostering monogamy, wellbeing, and the “orderly pursuit of happiness.”

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[1] Robert Cabaj, On the Road to Same Sex Marriage (San Francisco: Jossey-Bass, 1998) 133.

[2] Bruno Leone, At Issue: Gay Marriage (San Diego: Greenhaven, 1998) 14.

[3]  William Eskridge, Equality Practice: Civil Unions and the Future of Gay Rights (New York: Routledge, 2002) 24.

[4] The “Three Fifths Compromise” was enacted in the time of slavery, and stated that blacks counted legally as “three fifths” of a person for purposes such as what number of representatives to send to Congress.

[5] Leone 14.

[6] Eskridge 29.

6 Eskridge 26.


[8] Oliver Holmes, Collected Legal Papers (Boston: A. Harcourt, 1998) 187.

[9]Massachusetts court rules ban on gay marriage unconstitutional.” CNN.com. 2004. CNN. 18 Feb. 2004. <http://www.cnn.com/2003/LAW/11/18/samesex.marriage. ruling/>

[10] Eskridge 34.

[11] James Madison, “Federalist No. 10,” New York Packet 23 Nov. 1787

[12] Steve LeBlanc, “Protesters sing, pray and chant as lawmakers weigh gay marriage question.” Boston.com News.  2004.  Associated Press. 15 Mar. 2004. <http://www.boston.com/news/specials/gay_marriage/articles/2004/03/11/protesters_sing_pray_and_chant_as_lawmakers_weigh_gay_marriage_question/>

[13] Jonathan Goldberg-Hiller, The Limits to Union: Same-Sex Marriage and the Politics of Civil Rights (Michigan: Clover, 2002) 3.