The Legal History of Same Sex Marriage Essay

Excerpt from Essay :

Same sex marriage is not even worthy of debate anymore -- it is the law. The debate was never credible in the first place -- the side standing against it never once had a valid argument. The idea that this is controversial at any point in the 21st century was always absurd. The Supreme Court ended this debate on June 26, 2015 with their decision in the Obergefell v Hodges case. This report will cover the issue from the perspective of the means by which it was argued in court -- issues included the role of states in government, and the Constitution.

Relevant Case Law and Constitutional Principles

It is pointless to rehash the absurd arguments that flowed in the public debate. Irrational commentators cited their religious texts as giving justification to their hatred, and reasonable people saw this for the nonsense it was. The issue has even been framed as one of religious liberty (Laycock & Berg, 2013), when legally it is one of individual liberty. But, legally, this is an issue that needed to be brought to resolution at the government level, because ultimately government is charged with the task of certifying marriages. This is necessary for a number of different legal reasons, including the passing of estates to those who die intestate, to hospital visitation rights, and the rights of partners to various familial benefits of employment, or rights to familial benefits conveyed by the state. In other words, as absurd as the argument was, it was one that existed and needed to be resolved in order to address a wide range of legal issues.

Historically, states were free to define marriage, something that Justice Scalia argued in his dissent to the Obergefell decision. Only with the passage of the Defense of Marriage Act in 1996 did the federal government define marriage, and it did so as being between a man and a woman (Hess, 2009). The downside of Scalia's argument is that he argued that states at the time of the passage of the 14th Amendment all agreed that marriage was between a man and a woman. The problem with this thinking is that the 14th Amendment did not explicitly address marriage. The text of the 14th Amendment was that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property, without due process of law." This lays the framework for subsequent decisions regarding marriage, which surely is a privilege or right allowed under law.

A critical issue, then, is to what extent the federal government should become involved in a right or privilege that was once granted to the states. Some states, such as Massachusetts, had already enacted laws legalizing same sex marriage, while other states prohibited it. In that sense, the citizens of each state retained the right to form their own laws on the matter. The basis for those laws is actually irrelevant at that point -- the key is that the states traditionally had the right to define marriage within their borders and that several states had availed themselves of that right.

However, there is precedent for the Supreme Court to become involved in the definition of marriage. Hess (2009) notes that a key case for precedent was Loving v. Virginia, a 1967 case where the U.S. Supreme Court rules that state bans on interracial marriage were unconstitutional. Remember that public policy can arise from any of the three branches of government -- the legislative, the executive or the judicial. The legislative branch had sought to address the issue of same sex marriage prior. First, through the Defense of Marriage Act, and then through the attempted repeal of DOMA through the Respect for Marriage Act. President Clinton, who signed DOMA, now supports the Respect for Marriage Act. This act has been attempted four times during the Obama Administration, but has never passed into law.

The Defense of Marriage Act was also challenged in the court system. The key case was United States v. Windsor, which stuck own Section 3 of DOMA as violating the due process clause of the Fifth Amendment. The Fifth Amendment offers equal protection under the law, and the Windsor case was that the surviving spouse of a same sex couple who married in Canada was being denied such protection from the IRS, with respect to her spouse's estate. The Supreme Court ruled that Section 3 of the DOMA was in fact unconstitutional, and ordered the United States to return Windsor's taxes that were paid on the estate (United States v. Windsor, 2013).

The Respect for Marriage Act also sought to address other issues in DOMA. However, it has not passed on several attempts, so the next round of process with respect to same sex marriage, which was the Obergefell case. As noted, the Supreme Court already had a precedent for intervention with respect to the states right to define marriage, a right that was further eroded with the passage of DOMA, which clearly put these definitions in the realm of the federal government.

One of the arguments against same sex marriage in the Obergefell case was indeed that states have the right to define marriage. One of the strong influential forces in American politics is the divide between those who prefer a stronger central government and those who prefer as many rights as possible devolved to the state level. The role of the federal government has thus proved to be a critical issue in the debate about same sex marriage. One of the issues is when a marriage occurs where it is legal, whether the rights obtained via that marriage can be transferred across state lines. In the Windsor case, the marriage occurred in Canada, but this need not be the case, as there were states that were passing laws allowing same sex marriage. This was in direct response to changing attitudes among members of the public regarding same sex marriage laws -- in essence, the governments of a number of states responded to their constituents, and arguably the non-response in many other states was also a response to majority will (Baunach, 2012).

The problem with majority public opinion, however, as a means by which laws get passed, comes when public opinion runs afoul of the Constitution. Since the Supreme Court typically decides constitutional issues, the role of the Supreme Court naturally must include striking down laws, or elements of laws, that are unconstitutional in nature. The Loving v. Virginia case was one such example. Armed with that precedent, and the doctrine of equal protection, the Supreme Court was called upon to rule on the Obergefell case, and did so, effectively ruling that state laws banning same sex marriage were unconstitutional, just as it did when it ruled that state laws banning interracial marriage were unconstitutional.

Role of the Constitution

Ultimately, the same sex marriage debate became one of constitutional rights. The Constitution, including the Fourteenth Amendment, offer protection that supersedes state laws. This is because all American citizens are entitled to such protections, regardless of where in the country they live. The Supreme Court has asserted this authority on a number of occasions, one of which was the aforementioned Loving v. Virginia. Another was in the 2003 ruling that overturned Bowers v. Hardwick -- in that the Supreme Court ruled that criminalization of homosexual acts "demean the lives of homosexual persons," as noted in the Obergefell ruling (2015).

The Court has ruled that "the fundamental liberties protected by the Fourteenth Amendment's due process clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity" in the Obergefell decision. The claim to liberty, as protected under the Fourteenth Amendment, is very much a constitutional issue. Moreover, it is an issue of the individual, and therefore the individual is entitled to the protection of the Constitution against local, state or federal laws that would abridge such liberty. While the Supreme Court in its Obergefell ruling extend this liberty to homosexual peoples, that precedent was set earlier in the Bowers case. The Supreme Court, working with this definition of liberties, and accepting that the definition of marriage has always shifted over time, rendered its ruling in accordance with its duties to enforce the Constitution and its Amendments.


The Obergefell case outlines clearly both the reasoning behind the ruling and provides insight into the role of government. Local and state governments may be charged with the task of performing marriage, but they are not allowed to, in the course of this, violate the constitutional rights of any individual. Given that there are legal precedents for the inclusion of sexual preference among the liberties protected by the 14th Amendment, and that there is precedent for the Supreme Court to strike down as unconstitutional state laws that govern whom one can and cannot marry, there is clearly a pathway for the Supreme Court…

Sources Used in Document:


14th Amendment to the U.S. Constitution. Retrieved October 25, 2015 from

Baunach, D. (2012). Changing same-sex marriage attitudes in American from 1998 through 2010. Public Opinion Quarterly.Vol. 76 (2) 364-378.

Hess, D. (2009). Teaching about same-sex marriage as a policy and constitutional issue. Social Education. Vol. 73 (7) 344-349.

Laycock, D. & Berg, T. (2013). Protecting same-sex marriage and religious liberty.

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