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Equal Protection

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Home Civics Equal Protection History The Gay Marriage Debate and the Due Process Clause

The Gay Marriage Debate and the Due Process Clause

Obergefell v. Hodges

Spoiler alert: same-sex marriage is now legal in the U.S. This happened on June 26, 2015 in a Supreme Court ruling of 5-4. Here's why:

"No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than they once were. Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right." (Source)

There's still plenty of debate, though. For example, Justice John Roberts claims that same-sex marriage has nothing to do with the Constitution. Justice Scalia said the decision was a "threat to American democracy" and a "judicial Putsch" (source).


Do they have a case? Let's get into the brains of the five judges who voted in favor, just to be sure.

Loving v. Virginia

Justice Kennedy referenced Loving v. Virginia (1967) multiple times. This court case overturned state bans on interracial marriage, ruling that "freedom to marry" was an essential civil right. Most people would agree that hey, if race shouldn't determine whether people should get married, neither should gender. Denying anyone a right isn't equal treatment under the law. Straight up.

Specifically in Loving v. Virginia, the Court held that states could not ban interracial marriage since "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."

To "deny this fundamental freedom on so unsupportable a basis as racial classifications," Chief Justice Earl Warren wrote, was "directly subversive of the principle of equality at the heart of the Fourteenth Amendment." In short, "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."44

Beyond this explicit guarantee regarding interracial marriage, the Court has been building a more extensive zone of privacy around marriage since the 1920s. Today, that zone includes a guarantee that personal questions—such as who to marry, whether to have children, whether to use contraception, whether to terminate a pregnancy, or how to raise and educate children—are left largely inviolable by government action.

The Due Process Clause

The Due Process Clause of the Fourteenth Amendment says that states may not deprive persons of life, liberty, or property without due process of law.

In other words, the Due Process Clause of the Fourteenth Amendment is there to ensure that nothing crazy happens. It kind of slows things down, has everyone take the time to process what's going on, and makes sure no one's being treated unlawfully.

And over the past century, the Supreme Court has spent a great deal of time itemizing the specific liberties protected by this guarantee.

Some think that the Court hinted as much in its 2003 decision in Lawrence v. Texas. In striking down the state's "Homosexual Conduct" law, the Court relied primarily on the rational basis test; it could find "no legitimate state interest" in this law so directly impacting one classification of people.

But in the fine print, the decision referenced a more fundamental right to privacy and marriage established in earlier abortion cases. Writing for the majority, Justice Anthony Kennedy cited Planned Parenthood v. Casey and its affirmation of a "constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education."

He dwelled on the precedent long enough to explore the more abstract elements within this protection:

"These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State."

Justice Kennedy closed by noting that, "persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexuals do."45

Good ol' Justice Kennedy.

In Obergefell v. Hodges, the Due Process Clause is exactly what Judge Kennedy ended up referencing:

Under the Due Process Clause of the Fourteenth Amendment, no State shall 'deprive any person of life, liberty, or property, without due process of law.' The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights

So basically, denying marriage to anyone is depriving a bunch of American citizens the freedom to marry without due process of law. Obergefell v. Hodges is that due process. And as five out of nine Supreme Court judges decided, denying gay couples the right to marriage is not equal treatment under the law.

Gay Marriage and the Constitution

So, back to Justice John Roberts' claim that marriage is not a Constitutional issue. Is it? Well, maybe it wasn't when the very first cavemen were getting hitched and buying their very first caves together.

Let's state the obvious. Marriage wasn't a Constitutional issue before the Constitution existed. Nowadays, the government gives out marriage licenses and provides tax benefits and incentives to married couples. The government has definitely involved itself in the issue of marriage.

But is marriage a right or a privilege? The debate rages on, but five out of nine Supreme Court justices definitely say it's a right—a right that can't be denied to someone based on sexual orientation.

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