The Right to Marry
The Issue:  Does the Constitution protect the decision to enter into a marital relationship? 
Does the Constitution protect the right to marry for inmates? The mentally retarded?  Cousins? Persons of the same sex?

The first state marriage law to be invalidated was Virginia's miscegenation law in Loving v Virginia (1967).  Mildred Jeter, a black woman, and Richard Loving, a white man, had been found guilty of violating Virginia's ban on interracial marriages and ordered to leave the state.  The Court found Virginia's law to violate the Equal Protection Clause because it invidiously classified on the basis of race, but it also indicated the law would violate the Due Process Clause as an undue interference with 'the fundamental freedom" of marriage.

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.

Massachusetts' Supreme Judicial Court Okays Gay Marriage

The Supreme Judicial Court of Massachusetts, on November 19, 2003, ruled that the state "failed to identify any constitutionally adequate reason" to deny gay persons the right to marry and that the state's prohibition on same-sex marriage violated the state's constitution.  The Court, in its fifty-page 4 to 3 ruling, gave the state legislature 180 days to "take such action as it may deem appropriate in light of this opinion."  Because the case, Goodridge v Department of Public Health, was decided on state constitutional grounds, there is no federal issue for appeal to the U. S. Supreme Court.

Because of the Full Faith and Credit Clause of Article IV of the U. S. Constitution**, same-sex marriages performed in Massachusetts would have to be honored in other states unless they have enacted a so-called "defense of marriage act," as most other states have, either by statute or state constitutional amendment.

Following the Massachusetts decision, some conservative members of Congress announced that they would push for an amendment to the U. S. Constitution that would prohibit gay marriage.  (It is unlikely that Congress has the statutory power under the Commerce Clause of the Constitution to overturn the decision of Massachusetts.)  Then-President Bush indicated that he supported such a constitutional amendment.  Vice President Cheney, interestingly, said that he disagreed with the President on this issue, and would prefer that the matter be left to the states.

Gay marriage was a major issue in the 2004 election, and many observers credit it for giving Bush his narrow win over Kerry.  In key states such as Ohio, conservative voters turned out in large numbers to support state constitutional bans on gay marriage.  In all eleven states where constititional bans on gay marriage was on the ballot, it passed--in some states by nearly 3 to 1 margins.  In 2006, anti-gay marriage amendments passed in additional states, with Arizona being the lone state to reject such an amendment.

Loving v Virginia (1967)
Zablocki v Wisconsin (1978)
Turner v Safley (1987)

Cases: Gay Marriage
Lawrence v Texas (2003)
(intimate association)
United States v Windsor (2013)
Obergefell v Hodges (2015)

Mildred Jeter and Richard Loving


Edith Windsor (right) and her spouse, Thea Spyer


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?
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?

In 2002, scientists reported that first cousins can have children together without a great risk of birth defects or genetic disease.  Being cousins increases the risk of having a child with a serious problem from a background rate of about 4% to a rate of about 6%.

The First Proposed Constitutional Amendment on the Subject of Marriage (1912)

Congressional Record, 62nd Cong., 3rd sess., Dec. 11, 1912. Vol 49, p. 502

Mr. RODDENBERY. ( ... ) The resolution to which I make reference is one already introduced by me, providing for an amendment to the Constitution of the United States, with the usual resolving clause, and the article is as follows:

That intermarriage between negroes or persons of color and Caucasians or any other character of persons within the United States or any territory under their jurisdiction, is forever prohibited; and the term "negro or person of color," as here employed, shall be held to mean any and all persons of African descent or having any trace of African or negro blood.

Nothing will contribute more to the popular development and wise administration of a republican government than for the people in their legislatures to have an opportunity, by the adoption of this resolution, to provide that forever hereafter it shall be contrary to the fundamental law of the Republic for a negro or a part negro or an African or a part African to intermarry with a white person, a Caucasian,  or any person of like description.  The object of this resolution is to submit to the States a constitutional amendment for this purpose.... 

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