Is there a constitutional right to same sex marriage?

Great Debates
21

For the same reason that a woman can marry a man, but a man can’t marry a man: the laws that have been in place for centuries have recognized marriage as between people of opposite sexes.

It is very much equal protection. I can’t marry a same sex person anymore than Liberace could. Just because Liberace was sexually attracted to other males, and would perhaps have wanted to form such a bond is not relevant.

I have no desire to burn my yard waste tonight, but my neighbor does. The fact that the county doesn’t allow it right now is not a violation of my neighbor’s rights, even though it is on his private property.

The 14th amendment does not include every behavior known to man that some people have decided is right…

22

I’d like to know more about Loving v. Virginia. Did the court find that state-sanctioned marriage is a fundamental right? You can get a same-sex marriage in any state of the Union right now, as long as you don’t care whether the government recognizes it. (I happen to know a woman who married her lesbian partner in Pennsylvania over a decade ago.) Banning this would surely be an infringement on constitutional rights.

23

I don’t think that same-sex state sanctioned marriage is necessarily a constitutional right - especially in those states that have changed their constitution to prohibit these unions.

The various rights and privileges that attach to marriage, though, shouldn’t be denied to people shut out of traditional marriage by such laws. That is a basic case of equal protection, and I think it should apply even when the institution of marriage doesn’t.

24

First, I don’t know what a “same sex person” is. :wink:
However, the issue isn’t whether you or Liberace could marry a man. My point was that, if a woman could marry a man, denying a man the same right is unequal treatment under the law. Do you not believe this to be true?

I’m not certain what the relevance of this is to the issue at hand. I sincerely don’t understand what a nuisance like burning yard waste (I use nuisance in the legal sense; the fumes will encroach onto other property and detract from the right of quiet enjoyment owed to those property owners) has to do with marriage.

True, but the courts have decided that there are suspect classes of individuals, for whom special protection is owed, and gender is one of those classes. As I’ve already described, this doesn’t create an impenetrable burden for discriminating on the basis of gender, but a burden does exist, and it does have to be overcome.

To be clear, I should have answered the OP with “no”. I don’t believe there is a constitutional right to same sex marriage. However, I believe that the constitution does say that if a man is allowed to marry a woman, then the State must demonstrate an important state interest when passing a law that says a woman can’t marry a woman. And I don’t think, in 2008, the State can meet that burden.

25

Oh. So then you’re ***not ***taking an originalist position.

26

Some clarifications:

California jurisprudence now recognizes sexual orientation as a suspect class – and, moreover, one that invokes strict scrutiny. Federal jurisprudence, and AFAIK most states’ as well, do not.

Msrriage is, per Loving, a “fundamental right.” I am not clear on what principle Chief Justice Warren founded that holding But it is the law of the land. States may regulate marriage (e.g., minimum age, informed consent, no bigamy, opposite sexes, etc.) but may not unjustly withhold it from people. That Richard and Mildred Loving were being denied the right to marry due to a suspect classification, i.e. their different races, was key to the decision.

That is not identical to saying that same-sex marriage is a fundamental right. It could be argued to be one under the Equal Protection Clause – but so far no compelling argument has been sustained in Federal court to that effect.

27

Not all laws in the U.S. stem from the Constitution, do they? Isn’t the body of common law (civil in Louisiana) that predates the Constitution recognized as valid even without explicit Constitutional support? Since marriage predates the Constitution by a considerable margin, isn’t the OP’s question moot?

28

I am an originalist. The founders were all married men, and I’m sure that if you would have asked them if outlawing marriage was okay, they would have thought that a mark of tyranny.

Are you suggesting that homosexual marriage is a fundamental right that predates the U.S. Constitution?

29

That’s what I was talking about, too. Do some searching.

30

jtgain, from your originalist point of view, was the Loving v. Virgina decision unsuportable in the Constitution? How would you differentiate Loving from SSM based on your response in [post=9811185]post 28[/post]? After all, the founders were married only to same-race women.

31

The actual definition of a “right” should not come down to who has traditionally enjoyed that right.

If you agree with SCOTUS in Loving v. Virginia and Zablocki v. Redhail, then the right to marry IS a fundamental right. If you and I can agree on that premise, the only issue becomes WHO gets to enjoy the exercise of this fundamental right. For years and years, that right was only legally enjoyed (in many states) by members of the same race. Then, in Loving (and Perez and other state level courts), extended the traditional laws on the right to interracial couples. Now, in Massachusettes and California, courts have extended the right to marry to homosexuals. The right to marry IS fundamental, and simply defining the right by only letting those who have traditionally enjoyed it is wrong.

32

Loving:“Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U. S. 535, 316 U. S. 541 (1942). See also Maynard v. Hill, 125 U. S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.”

Skinner: “We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race.”

Zablocki v. Redhail: "The leading decision of this Court on the right to marry is Loving v. Virginia, 388 U. S. 1 (1967). In that case, an interracial couple who had been convicted of violating Virginia’s miscegenation laws challenged the statutory scheme on both equal protection and due process grounds. The Court’s opinion could have rested solely on the ground that the statutes discriminated on the basis of race in violation of the Equal Protection Clause; id. at 388 U. S. 11-12. But the Court went on to hold that the laws arbitrarily deprived the couple of a fundamental liberty protected by the Due Process Clause, the freedom to marry. The Court’s language on the latter point bears repeating:

“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”

“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”

Id. at 388 U. S. 12, quoting Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 316 U. S. 541 (1942).

Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals. Long ago, in Maynard v. Hill, 125 U. S. 190 (1888), the Court characterized marriage as “the most important relation in life,” id. at 125 U. S. 205, and as “the foundation of the family and of society, without which there would be neither civilization nor progress,” id. at 125 U. S. 211. In Meyer v. Nebraska, 262 U. S. 390 (1923), the Court recognized that the right “to marry, establish a home and bring up children” is a central part of the liberty protected by the Due Process Clause, id. at 262 U. S. 399, and in Skinner v. Oklahoma ex rel. Williamson, supra, marriage was described as “fundamental to the very existence and survival of the race,” 316 U.S. at 316 U. S. 541.

More recent decisions have established that the right to marry is part of the fundamental “right of privacy” implicit in the Fourteenth Amendment’s Due Process Clause. In Griswold v. Connecticut, 381 U. S. 479 (1965), the Court observed:

“We deal with a right of privacy older than the Bill of Rights – older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is 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. Yet it is an association for as noble a purpose as any involved in our prior decisions.”

Id. at 381 U. S. 486. See also id. at 381 U. S. 495 (Goldberg, J., concurring); id. at 381 U. S. 502-503 (WHITE, J., concurring in judgment).

Cases subsequent to Griswold and Loving have routinely categorized the decision to marry as among the personal decisions protected by the right of privacy. See generally Whalen v. Roe, 429 U. S. 589, 429 U. S. 598-600, and nn. 23-26 (1977). For example, last Term, in Carey v. Population Services International, 431 U. S. 678 (1977), we declared:

“While the outer limits of [the right of personal privacy] have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions 'relating to marriage, Loving v. Virginia, 388 U. S. 1, 388 U. S. 12 (1967); procreation, Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 316 U. S. 541-542 (1942); contraception, Eisenstadt v. Baird, 405 U.S. at 405 U. S. 453-454; id. at 405 U. S. 460, 405 U. S. 463-465 (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U. S. 158, 321 U. S. 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U. S. 510, 268 U. S. 535 (1925); @ 262 U. S. 399 (1923)].” Id. at 431 U. S. 684-685, quoting Roe v. Wade, 410 U. S. 113, 410 U. S. 152-153 (1973). See also Cleveland Board of Education v. LaFleur, 414 U. S. 632, 414 U. S. 639-640 (1974) (“This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment”); Smith v. Organization of Foster Families, 431 U. S. 816, 431 U. S. 842-844 (1977); Moore v. East Cleveland, 431 U. S. 494, 431 U. S. 499 (1977); Paul v. Davis, 424 U. S. 693, 424 U. S. 713 (1976). [Footnote 10]

It is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, childrearing, and family relationships. As the facts of this case illustrate, it would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society. The woman whom appellee desired to marry had a fundamental right to seek an abortion of their expected child, see Roe v. Wade, supra, or to bring the child into life to suffer the myriad social, if not economic, disabilities that the status of illegitimacy brings, see Trimble v. Gordon, 430 U. S. 762, 430 U. S. 768-770, and n. 13 (1977); Weber v. Aetna Casualty & Surety Co., 406 U. S. 164, 406 U. S. 175-176 (1972). Surely, a decision to marry and raise the child in a traditional family setting must receive equivalent protection. And, if appellee’s right to procreate means anything at all, it must imply some right to enter the only relationship in which the State of Wisconsin allows sexual relations legally to take place. [Footnote 11]

By reaffirming the fundamental character of the right to marry, we do not mean to suggest that every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny. To the contrary, reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed."

33

Thanks, Hamlet, for that awesome bit of research!

While I readily concede the accuracy of your post, my own judicial philosophy disdains from the idea that there is a right to privacy in the constitution, or that marriage is a fundamental right protected by the constitution. Neither marriage nor privacy appear in the document, and arguments that they are implied are, IMHO, going beyond the proper purview of the judiciary.

That, BTW, is why I would rest my decision (were I a judge given this responsibility) on the equal protection clause, as explained upthread.

Clearly, though, caselaw doesn’t support me. And I’m not a judge.

34

The founders were afraid that, if they created a document that listed specific rights, people would think that, unless it’s listed in the document, it’s not really a right. So they wrote the 9th Amendment that says: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” That Amendment lets everybody know that there are rights (in my mind including privacy) that do NOT appear in the document. This idea that, unless you find exact text in the Bill of Rights, the right doesn’t exist is simply wrong.

Once you get past that issue, the problem becomes one of who, and how, these unenumerated rights are determined and protected. Some people feel, against the evidence in my opinion, that the who, i/e the judiciary has no role in determining these rights. But the judiciary was, in fact, a branch of government specifically intended to exercise the judicial power and to protect the rights of the people of the US, from the actions of the majority. As to the how, there have been countless law review articles and dozens of Supreme Court cases, about how to determine which unenumerated rights should be protected. So that too is where there is much discussion. But it is a discussion that needs to be had, rather than simply saying “it’s not in the document” or “it’s not the judiciary’s role”.

35

I’m not contending that, absent express language in the Constitution, a right doesn’t exist. I am, however, contending that, absent express language in the Constitution, a right doesn’t have constitutional protection.

I think this is a very undemocratic philosophy. Look, I am very progressive in my politics, and would generally agree with the outcome were the Courts to decide, by judicial fiat, what rights exist. In fact, I think it is rare that more rights is a bad thing.

However, this philosophy removes law making from elected officials and places it in the hands of appointed officials. The judiciary is intentionally not bound by the will of the people, so they won’t (in theory, at least) be swayed by the political passions of the day. The flip side of this, however, is that the judiciary doesn’t create laws; they are limited to merely interpret what is on the books. Thus, we have to look to the words that are presented, and interpret those, lest we be subjected to whatever whims 9 justices come up with.

Merely saying that the 9th amendment means “et cetera”, such that there are lots of additional things in the constitution than what are written, creates a framework completely devoid of rules or standards. This is perhaps acceptable when you like the outcome of a court ruling, but what about when you do not? If there is no constraint requiring us to add rules by legialative deliberation, then what’s a legislature for? And what’s the recourse for disagreeing with the Judiciary, should it decide to bestow a right that nobody intended to exist?

36

Which, once again, was why the founders wrote the 9th Amendment. They weren’t just saying that these rights exist in a metaphysical sense, but that the government cannot “deny or disparage others retained by the people.” The Ninth Amendment isn’t just a nice statement of the existence of rights, it was a statement that the government can’t deny or disparage other rights not listed.

Yes. And the founders didn’t found a democracy. They took great pains to protect the people from mob rule. And one of those is that the judiciary is empowered to protect the rights of the people of the United States.

It’s not (only) a matter of what is right or wrong, it’s what is the system of government the Constitution created.

I agree. But none of that changes the role of the judiciary. When they protect the Constitution and the rights of the people of the US, they are not “making law”, they are interpreting the Constitution.

Not devoid of any framework. That’s what common law and the entire judicial system set up, are for.

Luckily the founders thought about that one too. And they created a system that allows the people and the legislature, to change the Constitution if the judiciary “bestows a right that nobody intended to exist”. One example that is often used is Roe v. Wade. I think it is perfectly clear that there exists a right to privacy. I also think it is perfectly clear that a woman has the right to control her body and make medical decisions. But I disagree with finding a right to abortion that outweighs the power of the government to protect potential human life. So, although I think Roe v. Wade did “bestow a right” (or more precisely find that right outweighs the governmental interest), the proper way to deal with it is to Amend the Constitution.

37

You’re confusing “law” with “statute” – a common mistake.

Far from it being the case that “a judge should not make law,” a judge automatically makes law with every decision he renders. When he assesses a fine of $50 for speeding ten miles over the posted limit, he’s made law – he’s established a precedent for what his court will assess as a fine for violating the section of statute prohibiting driving in excess of a posted speed limit.

If judges did not make law, there would be no point to courts. You could go in, prove that Joe cheated you out of $100, and the judge could only say, “Yeah, you’re right, he cheated you. Sorry about that. Next case.”

“Law” is the entire corpus of rules by which we live as a society.

Now, about the Ninth Amendment. There is nothing more obvious from the debates over ratification than that there was a consensus at the time the Constitution was adopted that the Rights of Man existed – pretty much a “natural law” viewpoint. The Bill of Rights was put in place to guarantee them. George Mason, leading Anti-Federalist, is on record at scoffing at the idea that someone could possibly enumerate all the Rights of Man. Madison is on record as having initially opposed the Bill of Rights for the exact reason you state – that it would appear to delimit what rights might be recognized.

Remember that the courts may, under trhe Constitution, only deal with a real “case or controversy” – not render pontifications about what is or is not the law in some advisory sense devoid of any real dispute. To my mind, it’s easy to identify a Ninth Amendment right: as a thought experiment, see what would happen in potential if it were not a right. Is marriage a fundamental right? If not, then can a state compleely ban marriage, say that no couple can hold itself out as married? The idea is ridiculous – even if the “get the government out of the marriage business” folks are listened to, the institution of marriage exists, just not as something licensed or regulated by government. Hence marriage is one of the unenumerated rights. Are you free to relocate, to move to Florida or California if you can afford it and the idea appeals to you? Well, can one of those states restrict immigration from other states completely, ban anyone from moving there? If not, then there’s a right to relocate. (These are parts of actual cases.)

In doing this, you have to be careful to define your terms accurately. No, the Founding Fathers didn’t contemplate gay marriage. They also didn’t contemplate an air force. But in A.D. 2008 the defense of the country calls for aircraft, as it did not in 1789. Hence the right to provide for the common defense, by raising an Army and maintaining a Navy, also is to be construed as allowing an Air Force.

The next question is whether a state’s regulation of a right is proper. And that’s where the Due Process and Equal Protection clauses come in. May a state prohibit a marriage where one partner is 13 years old? Most people would hold that to be a reasonable prohibition. Very well, classification on the basis of age is acceptable when in pursuit of a valid public purpose. May they restrict marriages on the basis of difference in race? You got the answer in Loving; race is a suspect classification, not acceptable to be differentiated by. Is sexual orientation a valid or invalid restriction? California says yes, it is. Aside from one case involving an appeals court, Federal jurisprudence has not spoken definitively on the issue.

And if something is a right, it’s a right for all citizens, guaranteed by the Constitution It doesn’t take action by the legislature in the form of adopting a statute to permit it. If a state chooses by statute to recognize gay marriages, that’s one thing. But if the right to contract a gay marriage actually exists, as an element of the clear right to marry – and this is where the debate gets heavy – then nobody has the right to prohibit it (except, of course, 2/3 of each house of Congress to adopt an amendment, plus a majority vote in each house of 3/4 of the state legislature to ratify it).

38

Wow! You are saying that, by virtue of the 9th amendment, the government can’t deny or disparage any rights, regardless of whether they are enumerated or not?

I think that, if we step back to consider the implications of that statement, we’ve just undermined the basis of governance.

Instead, I believe that the 9th amendment was designed to settle the debate, “In the absence of any statement on a subject, what is the status quo?” In other words, are all activities illegal until the government legalizes them, or are all activites legal unless and until the government makes them illegal? The 9th amendment answers the debate with the latter point.

When something isn’t addressed, it is presumed valid, unless and until otherwise restricted. This is not the same thing as saying that nothing can be restricted. And it is certainly not the same thing as saying, “all rights are protected in the constitution, despite the absence of anything discussing them.”

You’re right, the founders didn’t found a democracy. They didn’t found a government ruled by judges, either (I tried finding a word for that online, but gave up after a few minutes of searching). They founded a republic. If you prefer, your philosophy is very un-republican.

You are saying that judges can create any rights they please, and the solution to overturning that decision is to amend the constitution? If we look at how easily a judge can craft an opinion (with the stroke of a pen), and we look at how onerous the task of amending the constitution is (a super majority in both Congress and the States), I believe the founders intended the opposite strategy for changing what the constitution means. In point of fact, they never provided the right for judges to interpet the constitution, at all (Marbury v. Madison being one of the most egregious examples of judicial activism of all time).

39

When a judge levies a fine for speeding, or enforces a contract, he or she is not making law. They are applying laws already existing. If you came in to court and sued me for calling you a “poopy head”, and the judge fined me for the offense, then the judge would be making law.

I will, however, concede to you that judges do, in fact, make law, insofar as the common law (and not statutes) is the predominant way that cases are decided. However, we were discussing this in the context of the constitution, which is not governed by common law. It is, in a sense, the predominate “statute” on our books, and like all statutes, should not be interpreted by adding additional terms not already written within its text.

Now you are defining law to include all of the etiquette, mores, and social norms by which we operate. This is so far removed from a discussion of constitutional rights as to be absurd.

Please see my previous post for my opinion on what the 9th amendment means. It’s not particularly different what you’ve said. Again, though, there is a difference between a right and a constitutional right.

I believe that the constraint on the elimination of marriage is the will of the people. The government could ban marriage. But how long would those who passed such laws remain in office before being voted out on their asses? Popular will is what maintains such an institution, not a constitutional protection. As to immigration from one state to another, I note that Article IV, Section 1 (the privileges and immunities clause) says that “The Citizens of each State shall be entitled to all of the privileges and immunities of the several states.” I think this clause would prevent one state from banning immigration from another.

I completely agree. The difference is that the words regarding common defense (actually, more appropriately, since the preamble isn’t generally thought of as an enforceable part of the constitution, the word “armies”) is actually in the constitution. Once the power has been conferred, it is natural and logical to interpret that word according to its modern understanding. Marriage, however, makes no such appearance in the constitution.

Please look upthread, and you’ll see that I entered this debate to begin by arguing that the state’s regulation of marriage is not proper, insofar as it is a violation of equal protection. I would have argued the Loving case on similar grounds. I do not believe, however, that the proper basis for the decision is that marriage is a constitutional right. Rather, I believe that, if you extend the right to marriage to any one person, you better have a damn good reason for not extending it to another. Sexual orientation, and race, are not damn good reasons (not even close).

40

I’M not saying that, the 9th Amendment does. That was it’s entire purpose, to make sure the fact that rights were not enumerated in the Bill of Rights didn’t mean the government could unconstitutionally restrict them.

Nonsense.

Read the Amendment. It’s pretty clear.

Again with the nonsense. The fact that the judiciary is empowered (and has been empowered since the founding) to determine rights and the powers of the government to infringe upon those rights in no way changes our system of government. If you could leave behind the hyperinflated rhetoric, we could continue to discuss this.

No. I’m saying the judicial branch can find statutes that violate the rights of the people of the US to be unconstitutional. They don’t “create” rights, the rights are there. And they don’t do it “as they please”, they are bound to use common law and common sense, to do so. And, yes, the way to overrule a Supreme Court ruling is to amend the Constitution.

You pretend that this is some kind of far out idea that is simply unheard of. It’s not. It’s the system we’ve had for centuries, and the one that the founders created.

And, once again, if you could leave behind the hyperinflated rhetoric, we could discuss this. But you insist on these grand, useless points of “changing the constitution” and “making law”. The judiciary balances the rights of its people against the powers of the government. That’s what it was intended to do, that’s what it has done for centuries, and that’s what it should do.

And more of the same talking points.

Here: "“Although it was first asserted in Marbury v. Madison to strike down an act of Congress as inconsistent with the Constitution, judicial review did not spring full-blown from the brain of Chief Justice Marshall. The concept had been long known, having been utilized in a much more limited form by Privy Council review of colonial legislation and its validity under the colonial charters, and there were several instances known to the Framers of state court invalidation of state legislation as inconsistent with state constitutions.”

“Practically all of the framers who expressed an opinion on the issue in the Convention appear to have assumed and welcomed the existence of court review of the constitutionality of legislation, and prior to Marbury the power seems very generally to have been assumed to exist by the Justices themselves. In enacting the Judiciary Act of 1789, Congress explicitly made provision for the exercise of the power, and in other debates questions of constitutionality and of judicial review were prominent.”"

More here