Early in 2015, the Supreme Court agreed to hear an appeal of a decision in which the U.S. Court of Appeals for the Sixth Circuit had upheld the laws in Michigan, Ohio, Kentucky, and Tennessee that define marriage as the union of one man and one woman. Oral arguments in the cases (consolidated under the name of one Ohio case, Obergefell v. Hodges) were scheduled for April 28, 2015, with a decision expected by late June of 2015.
This paper explains why state definitions of marriage as the union of one man and one woman are consistent with the U.S. Constitution and with existing Supreme Court precedents.
Q: What does the Constitution of the United States say about marriage?
A: No provision of the Constitution makes any reference to marriage.
Q: What has the Supreme Court said about state laws that define marriage as the union of one man and one woman (and thus prevent same-sex couples from "marrying")?
A: Baker v. Nelson
In 1972, the Supreme Court received an appeal from a Minnesota Supreme Court decision upholding that state's marriage laws against an early challenge by a homosexual couple. The case was "dismissed for want of a substantial federal question." This is considered a ruling on the merits and is binding precedent.
Hollingsworth v. Perry (The "Proposition 8" Case)
In the case challenging California's marriage amendment (Proposition 8) in 2013, the Supreme Court was urged to declare a federal constitutionnal right to same-sex "marriage." The Court declined to do so.
Q: What portion of the U. S. Constitution do advocates of redefining marriage believe is violated by laws defining marriage as the union of a man and a woman?
A: Those asking courts to overturn state marriage definitions argue that they conflict with the "liberty" interest found in the Due Process Clause of the Fourteenth Amendment, and with the Equal Protection Clause of the Fourteenth Amendment.
Q: Do laws defining marriage as the union of one man and one woman violate the "fundamental right to marry?"
A: The Supreme Court has said that there is a "fundamental right to marry" -- but only in cases involving opposite-sex marriages, and often by explicitly linking marriage to procreation and childrearing. There can be no "fundamental right" to marry a person of the same sex, because such a "right" is not "objectively, deeply rooted in this Nation's history, legal traditions, and practices."
Q: Do such laws "discriminate" on the basis of sex?
A: If the law clearly puts neither sex at any disadvantage relative to the other, it cannot be asserted that the marriage laws discriminate on the basis of sex.
Q: Do such laws "discriminate" on the basis of "sexual orientation?"
A: The marriage laws are neutral on their face, because marriage licenses do not inquire as to a person's "sexual orientation." Such laws do not prevent anyone from marrying because of "who they are" -- ironically, a number of plaintiffs in lawsuits to redefine marriage have already been legally married (to persons of the opposite sex).
Q: But don't one-man-one-woman marriage definitions have a "disparate impact" on homosexuals?
A: While the definition of marriage has a "disparate impact" on the ability of homosexuals to marry the person of their choice, this alone does not offend the Constitution unless it can be proven that such laws were originally enacted with the sole intent of discriminating against homosexuals.
Q: What standard of review should courts use in cases involving "sexual orientation?"
A: There is no "fundamental right" to marry a person of the same sex. Homosexuals also do not meet any of the criteria for identifying a "suspect" (or "quasi-suspect") class that calls for "heightened scrutiny" (listed below). Therefore, even if courts find that marriage laws do classify on the basis of sexual orientation, such classification is subject only to "rational basis" review, which is highly deferential to legislative choices.
"History of Discrimination"
There has been a long history of disapproval of homosexual conduct, but such conduct-based judgments are not comparable to discrimination based on an innate characteristic such as race.
"Ability to Perform or Contribute to Society"
While homosexuals can "perform or contribute to society," they cannot "perform or contribute" to the core public purposes of marriage, such as natural procreation and dual-gender parenting.
Homosexual attractions can be changed, although it may not be easy; homosexual behavior, however, is voluntary and can be changed at will.
If anything, homosexuals currently possess a disproportionately high level of political power, relative to the size of that population.
Q: What public purposes of marriage provide a rational basis for limiting it to unions of a man and a woman?
A: The State has legitimate interests in encouraging responsible procreation, in furthering an environment in which the children so procreated will be raised in a family with both a mother and a father to whom they are biologically related and in preserving the traditional institution of marriage.
Only opposite-sex couples can ever procreate naturally, or do so accidentally. (Opposite-sex couples who do not or cannot procreate are still permitted to marry because it would be both practically and legally impossible to exclude them on that basis.)
Encouraging the Raising of Children by Their Mother and Father
Children benefit from having a stable relationship in the home with both biological parents, and from having parental role models of both sexes.
The fact that not all opposite-sex couples have or raise children, and that some people in same-sex relationships do, is not sufficient to prove that it is "irrational" to define marriage as the union of a man and a woman.
Preserving the Institution of Marriage
It is not irrational to speculate that changing the fundamental definition of marriage may change the nature of the institution, especially by further separating marriage, procreation, and family structure. In parts of Europe, recognition of same-sex unions led to a decline in marriage and increase in out-of-wedlock births.
Q: Do other Supreme Court decisions involving "sexual orientation" provide a precedent for overturning state marriage definitions?
A: Romer v. Evans (1996) struck down a state constitutional amendment in Colorado that specifically named those with a "homosexual . . . orientation" and served only to exclude them from seeking special "protected status." In contrast, marriage laws are neutral on their face and serve positive purposes related to legitimate government interests in responsible procreation.
Lawrence v. Texas (2003) struck down a Texas law against homosexual sodomy. Forbidding a state to punish homosexual relationships is far different from ordering it to celebrate them.
Q: Does the 1967 Supreme Court decision in Loving v. Virginia, which struck down bans on interracial marriage, provide a precedent for overturning laws defining marriage as the union of a man and a woman?
A: The Loving decision did not establish an unlimited right to "marry the person of your choice." It merely said that such a choice may not be restricted on the basis of race. Laws against interracial marriage built a wall to keep the races apart. Marriage builds a bridge to bring the sexes together.
Q: Does the 2013 Supreme Court ruling in United States v. Windsor, in which the court struck down part of the federal Defense of Marriage Act, provide a precedent for overturning state marriage definitions?
A: The 1996 federal Defense of Marriage Act (DOMA) said that states would not have to recognize same-sex "marriages" from other states, and that marriage would be defined as the union of one man and one woman for all purposes under federal law.
The latter provision (the federal definition of marriage) was struck down by the Supreme Court in the 2013 case of United States v. Windsor. However, the decision was based largely on DOMA's deviation from the tradition of the federal government deferring to state definitions of marriage. That same tradition would suggest that the Court should allow states to continue defining marriage as they choose.
Q: Could the Supreme Court choose a middle ground between upholding laws that define marriage as the union of one man and one woman, and ordering all fifty states to issue civil marriage licenses to same-sex couples?
A: Yes. It would be theoretically possible for the Court to rule that all fifty states must recognize legal same-sex civil marriages from other states, but that states need not license such unions themselves.
Because the Constitution is silent on the subject of same-sex "marriage," this policy issue should be decided through the democratic process.
 388 U.S. 1 (1967).
 133 S. Ct. 2675 (2013).
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