Same-Sex Marriage, I

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In the American legal order, religious institutions do not define marriage. Civil marriage is a contractually based legal status recognized by national, state, and local governments for many purposes, to which countless privileges attach. While this status has long been defined and restricted primarily at the state level, the Constitution limits state power over marriage and should invalidate one of the most obdurate of eligibility criteria: that a marriage must be mixed-sex.

With the possible exceptions of certain marriages in which one spouse has transitioned to another sex, every state requires that couples who would marry must be male–female. This materially and symbolically potent exclusion of lesbians and gay men and some bisexual persons from civil marriage violates established constitutional principles in multiple ways.

The refusal to allow same-sex couples to marry violates the due process clauses of the Fifth Amendment and the fourteenth amendment, under which the Supreme Court has recognized that the right to marry may not be significantly burdened absent extraordinary justification. In loving v. virginia (1967) the Court held that the right to marry is a fundamental right, and zablocki v. redhail (1978) made clear that it embraces both negative rights to freedom from government prosecution for cohabiting as married and affirmative rights to enter government-sanctioned civil marriage. The prohibition on two men or two women marrying thus should trigger strict scrutiny, provided the right is defined at a sufficiently high level of generality.

Defenders of the heterosexual status quo argue that civil marriage has always involved the union of one man with one woman, and thus that there is no substantive due process right to same-sex marriage "deeply rooted" in American history or "essential" to our scheme of ordered liberty. Yet it is inappropriate to take enduring characteristics of a person claiming a right into account in defining the contours of that right. The Court rejected such an effort in Loving, where Virginia argued that its miscegenation law prohibiting marriages between white and black persons violated no fundamental right because mixed-race marriages had long been prohibited by law. Despite the long history of monoracial statutory marriage definitions, the Court held that Virginia's law infringed the fundamental right to marry.

Similarly, the right to marry should not by fiat and history be deemed to exclude same-sex marriages a priori. Rather, the two-sex requirement should have to survive strict scrutiny to be consistent with the due process clauses. However, in the right to die case Washington v. Glucksberg (1997), a majority of the Court took a restrictive view of the proper formulation of substantive rights claimed to be protected under the due process clause, and it is conceivable that the Court would do so in this context and find no fundamental right to same-sex marriage.

Nonetheless, excluding same-sex couples from civil marriage also violates the constitutional guarantee of equal protection of the laws, which demands that governmental classifications must withstand the appropriate level of scrutiny. Under cases such as united states v. virginia (1996), governmental sex discrimination must survive at least intermediate scrutiny.

Defenders of the mixed-sex requirement contend that it does not classify on the basis of sex, for it equally forbids men and women to marry a person of the same sex. Somewhat surprisingly, lower courts have generally accepted this argument—with the notable exception of the Hawai'i Supreme Court in baehr v. lewin (1993), a decision under the equal protection clause of the Hawai'i state constitution. Baehr correctly observed that the U.S. Supreme Court had faced a logically equivalent argument in Loving, rejecting Virginia's fallacious contention that its miscegenation law did not violate the Fourteenth Amendment because it applied equally to white and black people. In fact, under Virginia law, a black woman, for example, was not allowed to marry a white man—the very facts of Loving, where Mildred Jeter could not marry Richard Loving—even though a white woman could marry a white man.

Mixed-sex marriage requirements similarly grant men and women different rights. Under current marriage laws, no woman would have the right to marry Mildred Jeter, even though most adult men would. It begs the question to insist that marriage is by nature a mixed-sex institution. Our laws embody political choices, not Platonic essences, and the point of equal protection analysis is to determine whether certain political choices are constitutionally forbidden. Hence, mixed-sex marriage laws must survive at least intermediate scrutiny. (Because nonrecognition of same-sex marriages also constitutes sexual orientation discrimination—since it is designed to keep marriage heterosexual or to prevent "gay marriage," and since its overwhelming immediate effect is to prevent lesbians and gay men from marrying—the mixed-sex requirement should also be subject to strict scrutiny as a sexual orientation classification.)

Government refusal to recognize same-sex marriages is therefore unconstitutional, for it can survive neither strict nor intermediate scrutiny. The interests commonly invoked to defend the legal privileging of heterosexuality are procreation and child-rearing. Today, however, encouraging procreation ought not count as a "compelling" or even "important" governmental interest, for there is no evidence that the U.S. population is in any danger of harmful reduction. Moreover, the mixed-sex marriage requirement is neither "narrowly tailored" nor "substantially related" to promoting procreation or healthy child-rearing. Marriage law has not traditionally required that either potential spouse be capable of procreation—post-menopausal women and sterile persons are allowed to marry everywhere in the United States—and failure to "consummate" a marriage has rendered a marriage at most voidable but not necessarily void. There is no reliable social science evidence that most or all mixed-sex marriages provide a healthier child-rearing environment than same-sex marriages, and the Court has insisted in the racial context in palmore v. sidoti (1984) that government cannot shield children from the harms that may flow from being raised in a racially stigmatized family environment where parents' fundamental rights are at issue.

At base, the nationwide refusal to recognize same-sex marriages, the federal Defense of Marriage Act, its state-level copycat statutes, and arguments that recognizing same-sex marriages would somehow "undermine" the institution of marriage all reflect both a profound anxiety that heterosexual privilege may be eroding and an attempt to use the law to perpetuate the subordinate status of lesbian, gay, and bisexual persons. The Constitution, however, prohibits majorities from using the power of government to shore up such status hierarchies. As the first Justice john marshall harlan argued in his dissenting opinion in plessy v. ferguson (1896), and as reaffirmed in the sexual orientation context in romer v. evans (1996), the Constitution "neither knows nor tolerates classes among citizens." It will be up to the courts and electorates throughout the nation to determine whether this noble principle will remain simply aspirational for gay, lesbian, and bisexual persons, or whether the nation will live up to its ideals of liberty and equality by eliminating the sex and sexual orientation discrimination of the current refusal to recognize civil same-sex marriages.

David B. Cruz


Balkin, J.M. 1997 The Constitution of Status. Yale Law Journal 106:2313–2374.

Eskridge, William N., Jr. 1996 The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment. New York: Free Press.

Koppelman, Andrew 1994 Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination. New York University Law Review 69:197–287.

Sherman, Suzanne, ed. 1992 Lesbian and Gay Marriage: Private Commitments, Public Ceremonies. Philadelphia: Temple University Press.

Strasser, Mark 1997 Legally Wed: Same-Sex Marriage and the Constitution. Ithaca, N.Y.: Cornell University Press.

Sullivan, Andrew and Landau, Joseph, eds. 1997 Same-Sex Marriage: Pro and Con, A Reader. New York: Vintage Books.