The US Constitution and Same Sex Marriage

Posted: October 17th, 2013

The US Constitution and Same Sex Marriage






The U.S. Constitution and same-sex Marriage

            One of the most controversial issues in the country is the marriage between same-sex couples. The issue is mostly between the church and those who support same-sex marriages. Other conservatives oppose the marriage, and they assert that marriages should be the way they have always been traditionally, between two people of the opposite sex. The church is opposed to the issue citing the fact that it is not biblical. They assert that the order of marriage should be between people of the opposite sex. This adds to the conflict between the church and state. The constitution clearly states that the church and the state are separate entities. The church cannot therefore argue against same sex marriages on biblical grounds, unless the union is happening in the church. Whereas the constitution is clear about the church and the state, it is not as clear concerning the issue of marriage. This makes it hard for the judges at various court levels to issue a decree that will prevail in the state.

The Defense of Marriage Act defined marriage as the “legal union between one man and one woman as husband and wife.” (The American Constitution). It also stated that states were not required to recognize marriages of people of the same sex. Critics have argued that the law was unconstitutional, and it should therefore not be enforced. Same sex couples have fought for the states to recognize their unions in marriage. In 1993, the Supreme Court in Hawaii declared the disallowed on same-sex unions unconstitutional. In 2004, the state of Massachusetts became the first in the US to accept the marriage of two people of the same sex. When giving the ruling, the judge defined marriage as the voluntary union as two persons as spouses (Cahill, 2004). This followed the decision made by the Supreme Court in Vermont, which recognized civil unions in 2000. The court in Massachusetts declared that it was wrong and unconstitutional to disapprove gays and lesbians the benefits offered to heterosexual couples. Since then, other states have followed suit, albeit with conditions. For instance, some states recognize the union of two same sex couples, but they do not refer to the union as a marriage. They give the unified couple the marital rights as married heterosexual couples. Although California followed Massachusetts lead in declaring the ban on gay marriages unconstitutional, voters later overturned the decision by the Supreme Court.

The constitution provides that other states shall recognize the laws passed by one state. Article 4 section 1 of the constitution states, “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the congress may be general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.” (The American Constitution). This means that same-sex couples who are married in Massachusetts should be recognized as such in other states. However, states, which have enacted the Defense of Marriage Act, are exempted. States that do not support the same-sex marriage have enforced this act. Many people are fighting to have the act overturned. They claim that the federal governments do not have the mandate to define marriage. On the other hand, many conservatives are pushing to amend the constitution, with the aim of making the same sex marriages illegal. Most same sex couples have fought for the states to change the meaning of marriage as stipulated by the state. They want their union to be recognized as civil marriages.

When making their ruling, many judges who support same sex marriages cite the fact that refusing to do so constitutes discrimination. The constitution guarantees equal protection to all American citizens, and couples of the same sex are no exception. They cite cases such as Loving v. Virginia in which the court held that the Virginia law that banned interracial marriages was unconstitutional. They also assert that refusing gays and lesbians to marry is denying them the due process of the law since the couples have a fundamental right to marry. The constitution states clearly that people should not be discriminated because of their sex, race and ethnicity. However, it does not mention sexual orientation. Same sex couples would have a better and stronger case if the constitution included sexual orientation. This would not make the issue of gay and lesbian marriages more understandable, but it would also ensure that people of other sexual orientation such as bisexuals and transsexuals have equal rights in all areas of life (Strasser, 1999). Some people claim that discrimination against sexual orientation constitutes sex discrimination (Wardle, 2003).

There are several reasons why people would oppose same sex marriages. Apart from the religious assertions, the government is also concerned about the stability of the family. Although there is no empirical evidence to support the claims, the government has held on to the fact that same sex families are unstable, and therefore not conducive for proper child development. Some critics claim that same-sex marriage undermines the marriage institution. Some conservatives argue based on nature. They argue that homosexuality is not natural and therefore, it should be discouraged.

Civil unions among same sex couples do not accord them the same marital rights as heterosexual couples. The constitution has not set the boundaries and limitations of marriage. It has not explicitly defined the concept of marriage, and thus the reason for much controversy concerning the issue. For same sex marriage to apply, the definition of marriage put forward by the defense of marriage act will have to change. Many people who support the same sex marriages claim that both adults have the fundamental rights. They argue that they are protected by the due process in the constitution, and they have the right to equal protection. Some also argue based on sex discrimination. Some people are calling for the amendment of the constitution to put a ban on same sex marriage.



Cahill, R S. (2004). Same-sex marriage in the United States: Focus on the facts. Lanham, MD: Lexington Books

Strasser, P. M. (1999). The challenge of same-sex marriage: Federalist principles and constitutional protections. Westport, CT: Greenwood Publishing Group

Wardle, D. L. (2003). Marriage and same-sex unions: A debate. Westport, CT: Greenwood Publishing Group

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