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Christopher B, Esq.
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What are the constitutional arguments for and against

Customer Question

What are the constitutional arguments for and against same-sex marriage?
Submitted: 1 year ago.
Category: Family Law
Expert:  Christopher B, Esq. replied 1 year ago.

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The arguments center on the 14th Amendment, which prohibits states from depriving any person of "liberty" without due process of law. It also requires that states guarantee "equal protection of the laws." The Supreme Court long has interpreted "liberty" to encompass much more than freedom from physical restraint; it also has recognized that some liberties are so fundamental that no possible legal process could justify their deprivation.

In 1967, when it struck down state laws banning interracial marriage, the court cited both of these provisions. Chief Justice Earl Warren wrote that Virginia's "anti-miscegenation" law violated the equal protection clause because it involved "invidious racial discrimination." It offended the due process clause because 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."

The same considerations argue for a decision striking down bans on same-sex marriage. Although the 14th Amendment was primarily intended to secure legal equality for freed slaves, its guarantees are couched in general terms that can accommodate new social circumstances. Thus the court has used the equal protection clause to uproot gender discrimination as well as racial discrimination, and the clause is equally applicable to discrimination on the basis of sexual orientation. The court should interpret a constitutional "freedom to marry" in light of the increasing realization that marriage includes same-sex couples.


The Constitution does not forbid the government, at any level, from taking steps to preserve marriage in its traditional form. Opposition to same-sex marriage has no source in discrimination, but rather is a positive effort to assure that the social values served by marriage go on being served by that institution. Those values depend, they insist, upon marriage being limited to one man and one woman.

The point emphasized most heavily, about opposite-sex marriage, is the necessary link that exists between marriage and child-bearing and child-rearing. They quote the English philosopher and social critic Bertrand Russell: “But for children, there would be no need of any institution concerned with sex….It is through children alone that sexual relations become of importance to society, and worthy to be taken cognizance of by a legal institution.” That institution, of course, is marriage, opposite-sex marriage.

On the merits, though, the marriage-children link is still the heart of their argument against same-sex marriage. It is founded in historical, legal, scientific and cultural principles. Marriage cannot possibly be treated as a “fundamental right” open to gays and lesbians because such a right must have a foundation in American history, legal traditions, and practices. It has none of those characteristics; it was unheard of in law until 2003, and can make no claim to being common even today. At the time the nation was founded, and at the time the Fourteenth Amendment was added to the Constitution in 1868, it was clearly understood that marriage was the union between one man and one woman. Those historic foundations of the definition should count heavily today in interpreting what the Constitution permits or demands.

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Expert:  Christopher B, Esq. replied 1 year ago.

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