Same-Sex Marriage, II

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Constitutional claims in support of same-sex marriage involve two dominant themes: (1) that the Constitution protects as a fundamental right the choice to marry another consenting adult of the same sex and (2) that refusal to permit same-sex couples to marry denies them the equal protection of the laws. Both claims fail existing standards of federal constitutional analysis, but state constitutional provisions may be interpreted differently.

The fundamental right argument for same-sex marriage posits the existence of unwritten constitutional rights such as the right of privacy, orof freedom of association, or a right to marry. Laws that impinge upon fundamental rights are subject to heightened judicial scrutiny, and may only be sustained if necessary and narrowly tailored to effectuate a compelling state interest. If same-sex marriage is not a fundamental right, the legislation will be reviewed (and presumably sustained) under a lower standard of analysis that is more deferential to legislative discretion. The test for whether a practice or relationship not specifically identified in the Constitution is protected as "fundamental" is whether it is "deeply rooted in this Nation's history and tradition," or "implicit in the concept of ordered liberty." Clearly, same-sex relations are not so rooted or so essential. Thus, same-sex marriage is not a fundamental right.

Although many decisions have recognized that the right to marry is a fundamental constitutional interest, all of them have involved traditional male–female marriage, which is deeply rooted in the traditions and history of our people. In bowers v. hardwick (1986), the Supreme Court emphasized that there is "[n]o connection between family, marriage, or procreation on the one hand and homosexual activity on the other.…" Marriage receives special protection because according to meyer v. nebraska (1923), it is the foundation of the traditional home and family, and because marriage is linked to procreation. Same-sex marriage is distinguishable in both respects.

From the perspective of the basic social purposes of legal marriage recognition, traditional male–female unions and same-sex unions are not equivalent. In terms of promoting safe sexual relations, procreation, child rearing, cross-gender integration, complementarity, and fostering public virtue, for example, same-sex unions do not contribute to the public interest in ways comparable to the tremendous contributions of male–female marriages. The union of two persons of different genders creates a unique relationship of unmatched potential strengths and inimitable potential value to society. The integration of the universe of gender differences associated with sexual identity constitutes the core and essence of marriage. The heterosexual dimensions of the relationship are at the very core of what makes "marriage" what it is, and why it is so valuable to individuals and to society.

The equality arguments for same-sex marriage are based on the Court's decision in loving v. virginia (1967), where the Court ruled that laws prohibiting miscegenation were unconstitutional. However, laws forbidding same-sex marriage are not comparable to laws forbidding interracial marriage; race has nothing to do with any legitimate purpose of regulating marriage, but sexual relations go to the very heart of the compelling state interest in defining the marital relationship. Likewise, eradicating racial discrimination is the core concern of the fourteenth amendment, but no constitutional provision purports to forbid discrimination on the basis of sexual preference or relations.

Denial of same-sex marriage is not improper sex discrimination. Heterosexual marriage is the oldest gender-equality institution in the law. The requirement that marriage consist of both a man and a woman emphasizes the absolute equality and equal necessity of both sexes for the most fundamental unit of society, and the indispensable, equal contribution of both genders to the basic institution of our society. Nor are same-sex unions functionally equivalent to heterosexual marriages any more than other prohibited relations, such as incest.

The Court has never addressed any constitutional claim for same-sex marriage. Lower federal courts and state appellate courts have unanimously rejected claims that the federal Constitution mandates the extension of marital status or benefits to same-sex couples, and most have rejected state constitutional claims also. However, by 1998, courts in two states had indicated that claims for same-sex marriage might be asserted under state constitutional provisions. In baehr v. lewin (1993) and Baehr v. Miike (1996), Hawaiian courts had ruled that the state's refusal to permit same-sex marriage violates equality guarantees in the state constitution of Hawai'i. And a trial court in Alaska ruled that denial of marriage licenses to same-sex couples violated state constitutional guarantees of privacy and equality. However, in November 1998, the people of both Hawai'i and Alaska ratified amendments to their state constitutions (2:1) to reject same-sex marriage. The equality argument seems to ignore the fact that heterosexual marriage laws treat men and women equally, requiring cross-gender marriage for both sexes. The privacy claim seems to confuse public toleration of private choices with private claims to public preferences; the right to privacy protects certain private conduct from public penalty, but does not compel the state to confer public benefits, privileges, and preferences on private choices. Nevertheless, these cases illustrate that state constitutions increasingly are the basis for constitutional claims for same-sex marriage.

Lynn D. Wardle


Coolidge, David Orgon 1997 Same-Sex Marriage? Baehr v. Miike and the Meaning of Marriage. South Texas Law Review 38:1–119.

Eskridge, William 1995 The Case for Same-Sex Marriage. New York: Free Press.

Wardle, Lynn D. 1996 A Critical Analysis of Constitutional Claims for Same-Sex Marriage. Brigham Young University Law Review 1996:1–101.