Is there a constitutional right to same sex marriage?

Great Debates
1

I don’t want to start another thread debating gay marriage. I want to put aside the argument of whether it should be legal or not, and instead focus purely on a constitutional right aspect.

Does a gay person have a constitutional right to marry a same sex partner?

If a person says “yes”, I would love to hear the section or amendment cited, or which principle that controls. I’ll take the originalist position and repeat it downthread if needed.

Again, only on the strict question in the title, not the merits of the result…

2

Are you talking federal or state?

3

Is there a constitutional right to any kind of marriage?

4

People are going to say the 14th amendment. It depends on how you interpret that amendment. You might want to do some searching for similar threads. We’ve done this a bunch of times before.

5

[QUOTE=John Mace]
People are going to say the 14th amendment. It depends on how you interpret that amendment. You might want to do some searching for similar threads. We’ve done this a bunch of times before.
[/QUOTE]

Yes, but it always gets bogged down in the end result of same sex marriage. I’m talking purely the constitutional area.

And I’m talking federal and state, unless the state has a provision that is radically different from the federal. For example, if State X has a provision that says “No gay marriage shall be allowed” then that would be silly to debate. Same thing with a constitutional provision that granted equality to homosexuality.

And yes, I believe that implicit in the concept of ordered liberty, there is a right to marriage.

6

[QUOTE=John Mace]
People are going to say the 14th amendment. It depends on how you interpret that amendment. You might want to do some searching for similar threads. We’ve done this a bunch of times before.
[/QUOTE]

I would say you could partially use the 14th (equal protection) and partially on the 9th. (the constitution does not cover all possible rights)

However, I believe the correct US constitutional answer is that it should be left to the states since marriage is not an issue the constitution reserves to the federal government and the 10th amendment says powers not reserved to the US are reserved to the states.

7

[QUOTE=Antinor01]
I would say you could partially use the 14th (equal protection) and partially on the 9th. (the constitution does not cover all possible rights)

However, I believe the correct US constitutional answer is that it should be left to the states since marriage is not an issue the constitution reserves to the federal government and the 10th amendment says powers not reserved to the US are reserved to the states.
[/QUOTE]

The 9th doesn’t cover all possible rights, so there must be a standard to see what the 9th was talking about.

The 14th equal protection is not absolute. The laws against murder don’t constitue an equal protection violation against murders. Where is the line here?

8

As to the California state constitution, the CA supreme court decided that not allowing gays to marry was discrimination based on sexual orientation which they have deemed a suspect class and therefore subject to strict scrutiny. The do not say the constitution gives a ‘right to marriage’ but that not allowing gays to marry in the same way that straights do constitutes discrimination.

The SCOTUS has said that marriage is a fundamental right, though I don’t recall their constitutional basis for that.

9

[QUOTE=jtgain]
The 9th doesn’t cover all possible rights, so there must be a standard to see what the 9th was talking about.

The 14th equal protection is not absolute. The laws against murder don’t constitue an equal protection violation against murders. Where is the line here?
[/QUOTE]

The 14th would still cover that on the due process clause. Equal protection under the law would still apply, as they would have the same right to a trial and any punishment allowed by law as any other person that murdered someone.

This is the full text of the 9th -

How it fully applies I don’t know. I’m not a great constitutional scholar.

10

[QUOTE=jtgain]
And yes, I believe that implicit in the concept of ordered liberty, there is a right to marriage.
[/QUOTE]
Do you believe that this implicit right is explicitly not equally extended to all otherwise-legal couples? If not, is not the right to same-sex marriage also implicit in the concept of ordered liberty, at least to the same degree as mixed-sex marriage is?

11

[QUOTE=Antinor01]
As to the California state constitution, the CA supreme court decided that not allowing gays to marry was discrimination based on sexual orientation which they have deemed a suspect class and therefore subject to strict scrutiny. The do not say the constitution gives a ‘right to marriage’ but that not allowing gays to marry in the same way that straights do constitutes discrimination.

The SCOTUS has said that marriage is a fundamental right, though I don’t recall their constitutional basis for that.
[/QUOTE]

This is not quite right. The SCOTUS and California Supreme Court held marriage is a fundamental right. Thus strict scrutiny applies to laws infringing on that right.

FURTHER, the CA court held laws discriminating on the basis of sexual orientation infringe upon a suspect class, and strict scrutiny applies for this reason as well.

To answer the OP, in CA, there is a constitutional right to SSM.

12

[QUOTE=Bearflag70]
This is not quite right. The SCOTUS and California Supreme Court held marriage is a fundamental right. Thus strict scrutiny applies to laws infringing on that right.

FURTHER, the CA court held laws discriminating on the basis of sexual orientation infringe upon a suspect class, and strict scrutiny applies for this reason as well.
[/QUOTE]

Ahh. I missed that the CA supreme held marriage as a fundamental right as well. (it’s a 200 odd page decision, I’m sure I missed a lot!)

13

[QUOTE=begbert2]
Do you believe that this implicit right is explicitly not equally extended to all otherwise-legal couples?
[/quote]

If you mean by “all otherwise-legal couples” homosexual couples, then yes, it is certainly not equally extended by most states.

[QUOTE=begbert2]
If not, is not the right to same-sex marriage also implicit in the concept of ordered liberty, at least to the same degree as mixed-sex marriage is?
[/QUOTE]

No, I don’t believe so. Nothing in the text of the constitution, the history of the country, the debates at the time of the founding, or anything else before 1970 can be found which seriously tried to legitimize the idea of homosexual marriage. IMHO, it certainly is not implicit in this concept of ordered liberty, and as such is at the discretion of the legislative process of the states..

14

[QUOTE=Bearflag70]
This is not quite right. The SCOTUS and California Supreme Court held marriage is a fundamental right. Thus strict scrutiny applies to laws infringing on that right.
[/quote]

It seems like they are changing definitions. Marriage is a fundamental right, but in a historical sense, between a man and a woman. Not homosexuals, polygamists, or incestuous relationships.

It seems as if they redefine what the nature of the fundamental right is then turn to a class that they’ve already implicitly included in their new definition.

[QUOTE=Bearflag70]
FURTHER, the CA court held laws discriminating on the basis of sexual orientation infringe upon a suspect class, and strict scrutiny applies for this reason as well.
To answer the OP, in CA, there is a constitutional right to SSM.
[/QUOTE]

Well, yeah, since the court said so, it seems to be that way. I’m talking about whether they were right or not.

15

Marriage is a fundamental right. (Loving v. Virginia) While this is not founded on an explicit Constitutional guarantee (other than the nebulous language of the Ninth Amendment), it is established law. Only a SCOTUS decision overturning Loving (unlikely in the extreme) or a Constitutional amendment can reverse this.

Observation: The circumstances in Loving were of an interracial couple challenging their arrest under Virginia’s anti-miscegenation law. Each had the unquestioned legal right to marry, under that law, someone of the same race as themselves. I think it would be reasonable to state that the holding in Loving provided for the right to marry the otherwise unencumbered partner of one’s choice – and let’s not get into people marrying children, dogs, cats, toasters, or their 1969 Camaro; we’re looking at adult human beings able to contract marriage here.

It did not hold that one might marry a partner of the same sex; the question was not raised and not answered.

However, the California case, as Bearflag has noted, founded itself on the California state constitution’s equal protection clause, the concept of marriage as a fundamental right, and on the idea of sexual orientation as a suspect classification.

Now, note the Fourteenth Amendment’s Equal Protection clause, and the jurisprudence associated with it regarding levels of scrutiny and suspect classifications.

And argument can be made that the Equal Protection Clause governs any case, nationally, relating to same sex marriage, in that if marriage is a fundamental right, and further with the unencumbered adult partner of one’s choice, to restrict it to an opposite sex partner is to impose a distinction impermissible under strict scrutiny on the grounds of sexual orientation. At present, this is purely arguable; SCOTUS has not ruled on it.

16

[QUOTE=Polycarp]
And argument can be made that the Equal Protection Clause governs any case, nationally, relating to same sex marriage, in that if marriage is a fundamental right, and further with the unencumbered adult partner of one’s choice, to restrict it to an opposite sex partner is to impose a distinction impermissible under strict scrutiny on the grounds of sexual orientation. At present, this is purely arguable; SCOTUS has not ruled on it.
[/QUOTE]

I don’t believe that sexual orientation has been made a suspect class. However, gender has, IIRC, been granted the level of intermediate scrutiny. That is, The government must show that gender discrimination serves an important state interest and that the classification is at least substantially related to serving that interest.

So, we have an equal protection challenge on gender grounds. In other words, if a man can marry a woman, why can’t a woman marry a woman? To infringe on this equal treatment under the law, the legislature must show that it is preserving an important state interest, and that the law is substantially related to this interest.

What, then, is the important state interest? Lots of times, there is the old standby, think of the children. However, as studies come out that show that children raised in same-sex families are just as well adjusted as mixed-gender families, the state’s interest in protecting child welfare becomes a non-issue.

Failing that, the government could present an economic argument (I’m stretching a bit for a second point, so bear with me). Allowing same-sex couples to marry deprives the state of tax revenue generated by people filing income tax returns singly. In such a case, the rebuttal could be that gender discrimination regarding marriage is not substantially related to serving the government’s tax collecting interest.

So, there is an equal protection argument for allowing gay marriage. I believe that, as society changes its understanding of homosexuality (such that we are spared the claptrap about its perversity and instead begin to accept it is occupying a natural place in the diversity spectrum), this argument will gain traction.

17

[QUOTE=jtgain]
Well, yeah, since the court said so, it seems to be that way. I’m talking about whether they were right or not.
[/QUOTE]

Yes, the SCOCA is right.

18

It’s been said twice already here but to put it briefly:

If Joe is allowed to marry Jill, but not Steve, because Steve is a boy and Jill is a girl, then that’s gender discrimination, which is under many circumstances a violation of the equal protection clause.

-FrL-

19

[QUOTE=Frylock]
It’s been said twice already here but to put it briefly:

If Joe is allowed to marry Jill, but not Steve, because Steve is a boy and Jill is a girl, then that’s gender discrimination, which is under many circumstances a violation of the equal protection clause.

-FrL-
[/QUOTE]

Gender discrimination? Which gender is being discriminated against?

20

[QUOTE=Frylock]
It’s been said twice already here but to put it briefly:

If Joe is allowed to marry Jill, but not Steve, because Steve is a boy and Jill is a girl, then that’s gender discrimination, which is under many circumstances a violation of the equal protection clause.

-FrL-
[/QUOTE]

The SCOCA rejected that argument.