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Same-sex marriage II: The arguments for

This is the second of four articles explaining the constitutional controversy, now awaiting the Supreme Court’s attention, over same-sex marriage.  The Court is scheduled to consider ten petitions on that issue at its private Conference on Friday.  This article discusses the legal arguments in favor of same-sex marriage.  Later articles will discuss the arguments against, and the options the Court has in considering the cases.  The first article in this series can be found here.


Two hallowed doctrines in American constitutional law — marriage as a “fundamental right,” and equality as the key to shared freedom — are the foundations of the arguments in favor of opening marriage to same-sex couples.  Putting the two together — marriage equality — is the ambitious goal of that movement.   That can be achieved by changes in state law — as has now been done in nine states: Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, and Washington, plus Washington, D.C.  It also could be achieved by amending the U.S. Constitution, but that is a very difficult proposition not seriously contemplated now.   It might be changed — at least to some degree — by Congress, but that is not a real prospect now.

Marriage as a legal matter is basically controlled by state law, since it is up to the states to decide who can marry.   But marriage is also a constitutional matter.  The Supreme Court, in discussing the right to marry, said as long ago as 1888 that marriage is “the most important relation in life,” and is “the foundation of the family and of society, without which there would be neither civilization nor progress.”  And in 1965, the Court described marriage as “an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty,  not commercial or social projects.”  The Supreme Court is now being asked to make at least a beginning on deciding whether that is an institution that is reserved for “one man and one woman.”  The arguments in favor of change are focused upon the single phrase: marriage equality.

There is no case now pending at the Court that directly asks this question: since marriage is a fundamental right, do couples of the same sex have a constitutional right to get married?   A case in California has often been understood, wrongly, as a test of that question.  The lawyers who fashioned a historic case against California’s “Proposition 8” argued that there was no need to create a “new right,” but rather a need only to allow equal entry into marriage as it already existed under state law.  Voter-approved “Proposition 8” overruled a state supreme court ruling recognizing such marriages under the California state constitution.  The Ninth Circuit Court, in striking down “Proposition 8,” said explicitly that it was deciding nothing about a “right” to marry.

The arguments for same-sex marriage equality are a mix of law, social science, and physical science, and all of those fields figure in the arguments that the Supreme Court will hear if, as expected, it agrees to decide one or more of the new cases.  The parts of the Constitution lying behind those arguments are the Due Process Clause — in the Fifth Amendment, for federal laws, and in the Fourteenth Amendment, for state laws — and the “equal protection” guarantees, implicit in the Fifth Amendment, explicit in the Fourteenth.   There is also an argument based upon the states’ rights guarantees of the Tenth Amendment, and a privacy argument based on the Ninth Amendment.

Before the Supreme Court could reach the constitutional arguments, it very likely would have no choice but to resolve two prior questions.  First, what constitutional test should be used to determine the validity of marriage laws that exclude same-sex couples?  (That is an issue that was discussed in the first article in this series; supporters of same-sex marriage have argued that such laws cannot pass any constitutional test.)

Second, has the Supreme Court already settled the issue, so that denying access to marriage for same-sex couples does not violate any constitutional guarantee?   The answer to that depends upon how the Supreme Court currently would interpret a one-line decision it issued in 1972, in the case of Baker v. Nelson.  In that case, the Minnesota Supreme Court had ruled that a denial of a marriage license to a gay couple did not violate constitutional guarantees of gender equality under the Fourteenth Amendment or that Amendment’s Due Process Clause, or a guarantee of privacy under the Ninth Amendment.  The Supreme Court dismissed the gay couple’s appeal from that ruling, saying only that it was doing so “for want of a substantial federal question.”

The advocates of same-sex marriage argue that the 1972 decision does not control the issue they are raising, for three different reasons. First, they say that the decision has been overtaken by more recent Supreme Court decisions recognizing and protecting gay rights, including a right to privacy in their sexuality.  Second, they say that the 1972 decision is binding only if that case involved the identical issue now being raised, and the issue is now the different claim of equality based on sexual identity, not gender.  Third, they say that the decision did not involve an attempt to deny marriage equality because of hostility to gays and lesbians.   A variation is made in the California “Proposition 8” case, with the argument that the voters there took away a right to marry that previously had existed, and that was not the situation in Minnesota forty years ago.  In fact, today in Minnesota, same-sex marriages are not allowed.

Once the discussion moves beyond those two antecedent points, the advocates of same-sex marriage rely most fundamentally upon repeated statements in Supreme Court opinions about marriage as a “fundamental right,” including statements that this is a right “for all individuals.”   They thus begin with the constitutional stature of marriage itself, and not with a claimed right of gays and lesbians to marry.

That choice of argument was made for a strategic reason, as well as a logical one.  Opponents of gay rights have often argued against recognizing such rights on the premise that courts were being asked to create new rights; that claim had to be countered strategically to appeal to the innate caution of most courts that would hear gay rights claims.  Logically, that choice reflects the fact that marriage as a fundamental right is of such long-standing recognition in the courts that the point is really not debatable.  The argument, then, focuses on the claimed constitutional violation in the denial of equal entry into that institution.

The fundamental right to marry is traced primarily to the Constitution’s broad promise of “due process” when the government takes action.  Within that promise, advocates link the right to marry to a right of liberty, a right of privacy, a right of intimate choice, and a right of association.  The choice of a partner is protected, the argument contends, based on one’s choice, not on the nature of the person chosen.   The advocates cite the Supreme Court’s decision in Loving v. Virginia, the 1967 decision that struck down Virginia’s ban on marriage between the races.  The Court, the argument goes, did not recognize a new constitutional right to interracial marriage, but a right for all persons to select a marital partner.

Neither, the advocates argue, has the Supreme Court limited the right to enter marriage according to what might later happen in a marital union, such as the opportunity or capacity to have children, the option to choose to avoid having children, the duty to provide financial support, or the right to opt to end the marriage in divorce.    Other laws may and do govern those consequences, or choices, in marriage, but they do not determine who can enter marriage in the first place, according to advocates.

Due process principles are also cited by advocates on a broader level, treating marriage as a relationship in which all of its participants share “the same dignity, respect, and status.”  This has to do with the social message that marriage sends to people beyond the individual marriage,  so that it receives the honor — even, at times, the reverence — that society holds for marriage itself.

When the arguments move beyond “due process” concepts, they turn to “equal protection” promises in the Constitution.  In the challenge to the constitutionality of the 1996 federal law, the Defense of Marriage Act, the advocates rely upon the equality that the Supreme Court has found to be implicit in the Fifth Amendment’s Due Process Clause.  In the challenges to state laws, such as those that have brought Arizona and California cases to the Supreme Court, the advocates rely upon the specific guarantee in the Fourteenth Amendment of “equal protection of the laws.”

These are arguments against discrimination or, in the parlance of lawyers, against “discriminatory classification.”   When a federal or state law sets up two classifications of people, one favored and one disfavored, that is understood to be a potential violation of legal equality at least when the disfavored class into which the second group is put is based upon a characteristic that does not have anything to do with the ability to participate fully in life’s activities.   If there is no valid government reason for treating people with such a characteristic less favorably, then such a law discriminates.

When such a law singles out gays and lesbians for disfavored treatment, the advocates contend that the law discriminates unconstitutionally.   Their lawyers, of course, are able to cite soaring declarations from past Supreme Court opinions about legal equality as a bedrock of the American legal system.

In order to qualify for equal legal treatment, when their sexual identity does not make them truly different from other people as participants in society, advocates argue that gays and lesbians have for many years been subjected to discrimination based upon their sexual identities.   “Targeted nullification of a disfavored group’s rights has long been constitutionally proscribed,” is the way this argument has been phrased in court.  Less formally, it is said that putting people in a legal class solely to “make them unequal” and doing so without a valid government goal is a clear violation of the Fifth and Fourteenth Amendments.

The basic social science theory that lies behind this particular legal argument is that being gay or lesbian does not justify being stereotyped as a person with second-class status, any more than racial or gender stereotypes are justified for racial minorities or women.   Differing treatment based solely upon being gay or lesbian, advocates say, is a typical stereotype.

Besides contending that gays and lesbians have traditionally been targeted for discrimination, advocates of homosexual equality argue that one’s sexual identity is not a matter of choice, but is part of that person’s human profile, not subject to change.  That, too, is based upon theories both of social science, as well as studies of physical science.  In this argument, they equate gays and lesbians with racial minorities and women — people with innate characteristics they did not choose.

Further, advocates contend that gays and lesbians have not been able, on a level of equality, to persuade governments to provide them with laws or regulations that protect them from discrimination based on their sexual identities.  Unless the Constitution comes to their rescue in assuring them equality, they have no dependable recourse to government, the argument goes.   To opponents’ arguments that gays and lesbians have become an increasingly powerful political community, gay rights advocates insist that progress toward equality is not full equality, and they — as much as other minorities — are entitled to full equality.

When the argument turns from the general question of gay equality, to marriage equality, advocates employ all of these equal protection theories: gays and lesbians remain the targets of discrimination under many state laws or constitutional amendments barring them from marriage, they are fully capable of committing to a single partner and to become parents in a marital union and to fulfill all of the legal obligations of marriage, and they have insufficient power in approaching government to actually achieve marriage equality as a general proposition.

There is an additional argument that advocates of equality for same-sex couples had previously relied upon fairly heavily but more recently have given less emphasis: that discrimination against them is also discrimination that is based on gender, as such.  Bans on same-sex marriage, this claim goes, forbid a man to marry a person that a woman could marry, and vice versa, and the difference is based directly on gender.  Again, the advocates rely upon the Supreme Court’s 1967 decision to protect marriage between the races, noting that a ban on such marriage was not neutral just because it applied to two races; a person of either race was barred from marrying a person of the other.   One of the reasons that this argument tends to be downplayed now is that the Supreme Court’s 1972 decision in the Minnesota case, however limited it was, at least implied that a ban on same-sex marriage did not violate gender equality principles.

Most of the equality arguments are used in the same way against federal and state laws that have been challenged as discriminatory toward gay and lesbian couples.  But there is a further argument that advocates are now using against the federal law that is now up for review by the Supreme Court: the Defense of Marriage Act.  That challenge is based on the fact that marriage traditionally has been defined by state law, and so, it is argued, it was constitutionally intrusive for Congress to decide to spell out a federal definition.  With nine states and Washington, D.C., allowing same-sex marriages, advocates contend, the 1996 Act treats those marriages as less legitimate than opposite-sex marriages, and thus diminishes the dignity and legal stature that those states have chosen to give to same-sex unions.   Congress, the argument goes, had no more justification for singling out same-sex couples for disfavored treatment — under more than a thousand federal laws or programs — than a state would have for doing so under state law.

That is an argument based upon federalism principles and the protection that states get for their sovereignty under the Tenth Amendment.

The couples or surviving spouses involved in challenging the federal marriage law are or were in marriages fully recognized in their own states, and so their claim is not one of a equal right to enter the institution of civil marriage, but rather it is a plea to be treated equally by the national government once a same-sex couple has entered that institution.

Tomorrow: Part III, the legal arguments against same-sex marriage.







Recommended Citation: Lyle Denniston, Same-sex marriage II: The arguments for, SCOTUSblog (Nov. 28, 2012, 12:04 AM),