A Constitutional Argument For Same-Sex Marriage

Before the vitriol-filled comments begin, let me say that I do not believe that one group’s religious views are a sufficient basis for denying other Americans their civil rights afforded by the U.S. Constitution.

In a San Francisco federal court today (see NPRThe Washington Post), a challenge to the constitutionality of California’s ban on same-sex marriage will be heard by Chief U.S. District Judge Vaughn R. Walker, in a that case focuses on the Equal Protection Clause of the U.S. Constitution.1

The United States Constitution provides the framework from which our civil liberties are derived, yet in the case of same-sex marriage, these rights are ignored and result in the violation of one group’s rights. Opponents argue that marriage is an institution of the church, and thus must be protected, but this argument is at odds with present-day legal realities and simultaneously conflicts with the First Amendment. At an even more basic level, denying one group a right afforded another violates the Fourteenth Amendment.

Equal protection under the U.S. Constitution

The 14th Amendment to the U.S. Constitution states, in part,

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…nor deny to any person within its jurisdiction the equal protection of the laws.”2

In direct conflict with the 14th Amendment, the Defense of Marriage Act (DOMA), passed in 1996, provides the framework under which states can deny same-sex couples the right to marry and is comprised of two parts. The first, codified in 1 U.S.C. §7, defines marriage for federal purposes3 as a union between one man and one woman. The second, codified in 28 U.S.C. §1738C, excludes same-sex marriage from the recognition required under the Full Faith and Credit Clause4 of the U.S. Constitution, meaning that unlike traditional marriage, states are not required to recognize same-sex marriages performed in other states.

Both DOMA and similar state regulations directly violate the protection afforded by the Fourteenth Amendment by providing a right to one group that is denied to another and by permitting states to discriminate against one type of marriage. DOMA contradicts precedent set by the U.S. Supreme Court when, in Loving v. Virginia, the court struck down Virginia’s prohibition on interracial marriage as unconstitutional under the 14th Amendment.5

Marriage is a state institution with its origins in religion

While marriage does have its roots in religion, in the United States, marriage is a function of the state. When a couple wishes to marry, approval of a religious organization is not a prerequisite. Instead, the couple applies for a marriage license with some division of the government in the state where that couple resides.6

When a couple wishes to dissolve their union, they seek such action through the courts.7 While certain religions do annul or otherwise terminate marriages, such actions have no legal standing. Until the appropriate court issues a divorce decree or legal annulment8, a marriage still exists.

Separation of church and state

Recognizing that marriage is a concept born of religion but now governed by state and federal law, the separation of church and state prescribed by the First Amendment to the U.S. Constitution9 demands that the equal protection afforded by the 14th Amendment supersede any religious arguments against same-sex marriage.


As Rob Schmitz noted in his piece for NPR’s Morning Edition, whatever Judge Walker decides in the case that begins today, his ruling will surely be appealed to U.S. Court of Appeals for the Ninth Circuit and, ultimately, the U.S. Supreme Court. Unlike the Supreme Court’s decision in 1972 not to hear a same-sex marriage case from Minnesota “for want of a substantial federal question,”10 such a situation does today exist as embodied in Gill v. Office of Personnel Management, a lawsuit filed in Massachusetts District Court challenging the Defense of Marriage Act.

  1. As an aside, Judge Walker ruled that proceedings in this case can be posted to YouTube on a daily basis. According to both NPR and The Washington Post, this is the first such instance of court proceedings appearing on Google’s video-sharing service.
  2. Amendment 14.
  3. “Federal purposes” include denying Social Security Administration Surviving Spouse benefits and the ability to make end-of-life decisions for one’s partner, as well as excluding federal employee’s domestic partners from healthcare coverage, among myriad other exclusions.
  4. The Full Faith and Credit Clause allows Congress to establish laws regarding how states will interpret the laws of other states. Article 4, Section 1 of the U.S. Constitution.
  5. Loving v. Virginia.
  6. Marriage, Cornell University Law School Legal Information Institute.
  7. Divorce and separation: an overview, Cornell University Law School Legal Information Institute.
  8. Annulment Law, Aaron Larson, Law Offices of.
  9. Amendment 1.
  10. Vick, Karl. “Same-sex marriage set for big day in federal court,” The Washington Post, January, 11, 2010.