Is the Course of Marriage in the U.S. Set to Change?

News: Government
by Christine Niles  •  •  June 24, 2015   

The Supreme Court is about to issue a history-making ruling on marriage

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WASHINGTON, D.C., June 24, 2015 ( - The U.S. Supreme Court is about to issue a history-making ruling on marriage, with the opinion for the case Obergefell v. Hodges expected to be handed down any day now. At stake is whether the states will retain the right to define marriage on their own terms, as they always have in the past, or whether the Supreme Court will impose a straight-jacket ruling on all 50 states redefining marriage.

Obergefell is a consolidation of cases from four states — Ohio, Tennessee, Michigan and Kentucky — with gay residents of each state suing their respective state bans on gay "marriage." At the heart of the analysis are two questions:

  • Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
  • Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

More specifically, the Court will examine whether a fundamental "right to gay marriage" can be found in either the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment.

John Bursch, former solicitor general for the state of Michigan (a devout Catholic and married father of five), is arguing on behalf of the states' right both to refuse to license same-sex "marriages" and to refuse to recognize the same from other states. Mary Bonauto, representing the opposition, is arguing that the Constitution implicitly contains a fundamental right to gay "marriage" under the Fourteenth Amendment. Bonauto is also a Catholic, and is in a lesbian "marriage" with her longtime partner with whom she is raising twin daughters.

The lower court decision on appeal before the Supreme Court had upheld the states' bans on gay marriage, encapsulating its reasoning thus:

What we are left with is this: By creating a status (marriage) and by subsidizing it (e.g., with tax-filing privileges and deductions), the States created an incentive for two people who procreate together to stay together for purposes of rearing offspring. That does not convict the States of irrationality, only of awareness of the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended offspring. That explanation, still relevant today, suffices to allow the States to retain authority over an issue they have regulated from the beginning.

Because marriage has traditionally been reserved to each individual state's sphere of governance, and because the states have a rational basis for restricting marriage only to a man and a woman (namely, procreation and children), according to the appellate court, it has no authority to define policy in this area, and therefore ruled in favor of each state's right to define marriage according to legislative will.

But Bonauto is arguing that the U.S. Constitution trumps states' rights in this case. Both the Equal Protection and Due Process clauses have been used in the past as a "catch-all" for various fundamental rights — most notoriously the Due Process Clause, which ushered in a so-called right to abortion in the 1973 case Roe v. Wade.

At one time interpreted narrowly, the Due Process Clause simply ensures the procedural administration of justice in the courts: "[N]or shall any State deprive any person of life, liberty, or property, without due process of law ... ."

In the 20th century, the clause saw a broader interpretation with the introduction of "substantive due process." Beginning in the 1930s, the Court began ruling on cases that involved more than the procedural aspect of court administration, and focused more on substantive rights in the administration of justice. For instance, in the 1930s, the Due Process Clause was used to strike down minimum wage laws because they violated the freedom of contract. Later, in the 1960s and 70s, the Court struck down bans on contraception and later abortion because they allegedly violated couples' right to privacy.

The argument now before the Supreme Court is whether the Due Process Clause recognizes a fundamental right to marry for each individual — including gays — and whether states' denial of that right is arbitrary and capricious, and therefore a violation of the Due Process Clause. How the Court answers that question in the next few days will have a profound effect on the course of marriage in America.


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