The Loving family at play

In Zablocki v Redhail (1978), the Court struck down a Wisconsin law that required persons under obligations to pay support for the children of previous relationships to obtain permission of a court to marry.  The statute required such individuals to prove that they were in compliance with support orders and that marriage would not threaten the financial security of their previous offspring.  The Court reasoned that marriage was "a fundamental right" triggering "rigorous scutiny" of Wisconsin's justifications under the Equal Protection Clause.

In Turner v Safley (1987), the Court refused to apply strict scutiny to a Missouri prison regulation prohibiting inmates from marrying, absent a compelling reason.  Instead, the Court found the regulation failed to meet even a lowered standard of "reasonableness" that it said it would apply in evaluating the constitutionality of prison regulations.

As of 2013, twelve states recognize same sex marriage (see map below).  In several states, the state supreme courts (Massachusetts, Iowa, and  Connecticut) found bans on same-sex marriage to violate state constitutions and in other states, legislatures moved to allow same-sex marriages.  In California, where the state legislature legalized same sex marriage only to have the voters overturn that law by initiative (Amendment 8), a federal district court found Amendment 8 to violate federal equal protection principles and the state chose not to appeal.  In 2013, the Supreme Court in Hollingsworth v Perry dismissed an appeal by proponents of Amendment 8 for lack of standing, a decision which effectively will open the doors to gay marriage in California.

In 2013, in United States v Windsor, the Court invalidated a provision of the Defense of Marriage Act (DOMA) on the grounds that it violated the equal protection principles embodied in the Due Process Clause of the Fifth Amendment.  In a 5 to 4 decision by Justice Kennedy, the Court said "careful consideration" had to be given to "discriminations of unusual character."  That, coupled with the deference that the federal government owes states with respect to how they define marriage, led to striking down the federal law that did not recognize same-sex marriage for federal purposes (e.g, joint filing of a tax return) even when a couple was lawfully married under state law. Justice Scalia, in dissent, crititicized the Court for intervening in a matter that should have been left to elected representatives and the people to decide: "The Court has cheated both sides, robbing the winners of an honest victory, and the the losers the peace that comes from a fair defeat.'

Whether the Full Faith and Credit Clause requires states that do not allow same-sex marriages to refuse to recognize the validity of marriages lawfully performed in another state remains an open question.  So too, the Court left open the question of whether state bans on same-sex marriage violate the Equal Protection Clause of the Fourteenth Amendment. 

In 2015, facing a circuit split, the Supreme Court resolved the question of whether state bans on gay marriage violated the Equal Protection and.or Due Process Clause of the 14th Amendment.  In Obergefell v Hodges, a five-member Court majority concluded that the bans did indeed violate both 14 Amendment provisions. Writing for the Court, Justice Kennedy said the Framers of the Constitution "did not presume to know the extent of freedom in all of its dimensions, and so they entrusted future generations a charter protecting the right of all persons to enjoy liberty as me we learn its meaning."  With "new insights" into liberty's meaning, "The Court now holds that same sex couples may exercise the fundamental right to marry."  In dissent, Chief Justice Roberts argued the "Constitution had nothing to do" with the right granted by the Court which, in his opinion, was making a decision left by the Framers to legislatures.  Justice Scalia ridiculed the reasoning of the Court, indicating in a footnote that he would hold his head "in a bag" if he were compelled to join the majority's opinion.

1. What do our cases suggest about the constitutionality of the following laws?: (1) a law prohibiting a mentally retarded adult from marrying, (2) a law prohibiting first cousins from marrying, (3) a law prohibiting a brother from marrying his sister, (4) a law prohibiting polygamy,  (5) a law prohibiting persons of certain incompatible blood types (predisposing offspring to defects or disease) from marrying, and (6) a law prohibiting minors from marrying without the consent of parents or guardians.
2.  Do you agree that prison regulations concerning marriage should receive a lower level of scrutiny than should restrictions on marriage in other contexts?
3.  Do you agree with the Massachusetts ruling concerning same-sex marriages?  Do you think laws prohibiting same-sex marriages should be found to violate the Equal Protection Clause of the United States Constitution?  Should the Constitution be amended to prohibit same-sex marriages?
4. Does Lawrence suggest that laws prohibiting homosexual marriage are unconstitutional?  What legitimate interest does the state have, if any, in prohibiting two persons of the same sex from entering into a marriage relationship?
5. Justice Scalia strongly criticized the majority's reliance, in Lawrence, on European decisions affording legal protection to homosexuals engaging in private sexual conduct.  To what extent to you see decisions and trends in other parts of the world as being relevant to interpretation of our Constitution?
6.  Critics of same-sex marriages argue that unless marriage is defined as the union of one man and one woman we will soon have courts finding a constitutional right to polygamy or a right for a man or woman to marry a favorite pet.  What lines might and should be drawn?
7.  In 2002, in In Re Estate of Gardiner, the Kansas Supreme Court ruled that a marriage between a man and a transexual woman (a person born male, but operated on prior to marriage) is invalid.  As a result, the transexual woman was unable to claim her deceased spouse's $2.5 million estate that she would have otherwise been entitled to.  Do you think the Kansas law denying transexuals the benefits of marriage offends the U. S. Constitution?