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.
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.
Cases:
Gay Marriage
Lawrence v Texas
(2003)
(intimate association)
United
States v Windsor (2013)
Obergefell
v Hodges (2015)
Mildred Jeter and Richard Loving
THE STORY
BEHIND LOVING v VIRGINIA
Edith Windsor (right) and her
spouse, Thea Spyer
Questions
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ドル.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%.
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....