Eleanor Finch
The Constitution of the United States does not explicitly define marriage as between a man and a woman, nor does it mention marriage at all. Traditionally, a marriage was considered valid if it fulfilled the requirements of the marriage law of the state where the marriage took place. However, the Federal Marriage Amendment (FMA) was a proposed amendment to the Constitution that would have legally defined marriage as a union of one man and one woman, preventing same-sex couples from marrying. The FMA did not pass, and in 2013, the Supreme Court declined to declare a federal constitutional right to same-sex marriage. Instead, the Supreme Court's ruling in Windsor affirmed that people have the right to define marriage as they see fit, absent any superseding federal right. While some states have passed constitutional amendments defining marriage as between one man and one woman, others like Massachusetts and California have ruled in favour of permitting same-sex marriage.
| Characteristics | Values |
|---|---|
| Does the Constitution define marriage as between a man and a woman? | No, the Constitution does not mention marriage. |
| What about the Federal Marriage Amendment (FMA)? | The FMA was a proposed amendment to the U.S. Constitution that would define marriage as a union of one man and one woman. It did not pass. |
| What about state laws? | States are free to set the conditions for a valid marriage, subject to limits set by their own constitution and the U.S. Constitution. Thirty states passed state constitutional amendments defining marriage as between one man and one woman. |
| What about Supreme Court rulings? | The Supreme Court has declined to declare a federal constitutional right to same-sex marriage. However, it has also ruled that states with laws defining marriage as a one-man, one-woman union cannot refuse to recognize same-sex marriages. |
| What about the impact on same-sex couples? | The FMA and similar state laws have been criticized for discriminating against same-sex couples and denying them legal protections such as hospital visitation rights, inheritance rights, and health insurance coverage. |
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What You'll Learn
The Constitution does not mention marriage
The Constitution of the United States does not mention marriage. It is silent on the issue, and therefore, the federal government has no power to regulate it. The Supreme Court's mandate is to determine the constitutionality of laws, and the Constitution's framework of powers is designed to require overwhelming support for any changes to be made.
The Constitution is an elegant document that is rigid in its respect for federalism. It is so hard to amend that it has only been done 27 times in US history. The Supreme Court has, however, been accused of amending the Constitution improperly, by creating a right to marriage. This is seen as ignoring the 10th Amendment, which states that any powers not delegated to the United States by the Constitution are reserved for the states or the people.
The Supreme Court has declined to declare a federal constitutional right to same-sex marriage, and state laws defining marriage as between one man and one woman have been upheld as constitutional. The Supreme Court has also upheld that there is no "fundamental right" to marry a person of the same sex.
The Federal Marriage Amendment (FMA) was a proposed amendment to the Constitution that would have defined marriage as a union of one man and one woman, but it did not pass. The FMA would have imposed a single, discriminatory definition of marriage that all states would have been required to follow, overriding any existing local and state-level protections for same-sex couples.
The Constitution, therefore, leaves the definition of marriage to the states and the people, and it is up to the states to set the conditions for a valid marriage, subject to the limits set by their constitutions and the US Constitution.
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The Supreme Court has not created a right to marriage
The Constitution of the United States does not define marriage as between a man and a woman. In fact, it does not mention marriage at all. As such, it is not a power delegated to the federal government to regulate. The Supreme Court has consistently upheld this interpretation, declining to create a Constitutional right to marriage.
In 2013, the Supreme Court was urged to declare a federal constitutional right to same-sex marriage in a case challenging California's marriage amendment (Proposition 8). The Court declined to do so, leaving the definition of marriage to the states. This decision was based on the principle that the Constitution prevents federal intrusion on the right of the people to define marriage, as protected by the 10th Amendment.
The Supreme Court's mandate is to determine the Constitutionality of laws, not to create new rights. In considering Constitutional questions, the Court often first considers its own opinions about the Constitution rather than the document itself. This has led to criticism that the Court is improperly amending the Constitution, a task for which it is ill-equipped.
The Federal Marriage Amendment (FMA) has been proposed as an amendment to the Constitution to define marriage as between one man and one woman. This amendment would also prevent judicial extension of marriage rights to same-sex couples. While the FMA has been introduced multiple times, it has not received enough support to pass.
The Supreme Court's decision not to create a Constitutional right to marriage upholds the federalist structure of the Constitution and respects the rights of the people and the states to define marriage as they see fit. It is important to note that the absence of a Constitutional right to marriage does not mean that marriage is not a legally recognized institution. Marriage laws exist at the state level, and these laws define the requirements for a valid marriage within that state.
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The Federal Marriage Amendment (FMA)
The FMA was first introduced in 2002 by Rep. Marilyn Musgrave (R-Colo.) and was referred to the House Committee on the Judiciary. The bill was designated H.J.Res 93 and stated that "Marriage in the United States shall consist only of the union of a man and a woman". The amendment was reintroduced in 2003 and 2004 with the same wording and was referred to the Subcommittee on the Constitution, where hearings were held in 2004. The 2004 version of the FMA stated that marriage in the United States would "consist solely of the union of a man and a woman".
The FMA was supported by President Bush, who believed it would protect the family and the institution of marriage. Bush was not opposed to states enacting their own civil union legislation but wanted to leave state legislatures free to make their own choices in defining legal arrangements other than marriage. The FMA was also supported by groups such as "Marriage Savers", led by Mike McManus, who promoted marriage as being between a man and a woman.
However, the FMA faced opposition from those who argued that it would violate states' rights to regulate marriage and that it should be left to the states to define marriage. Some opponents, including Senator John Kerry, Senator John McCain, and Representative Ron Paul, used the federalism argument, claiming that regulating marriage was not a proper role of the federal government. Opponents also argued that the FMA would discriminate against the LGBT community by excluding same-sex couples from receiving the benefits of marriage.
The last congressional vote on the FMA occurred in the House of Representatives on July 18, 2006, when the motion failed 236 to 187, falling short of the required 290 votes for passage. The Senate has only voted on cloture motions regarding the FMA, with the last vote taking place on June 7, 2006, falling short of the required number of votes to proceed with the proposal.
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State laws and marriage
The Constitution does not explicitly define marriage as between a man and a woman, nor does it mention marriage at all. This means that regulating marriage is not a power delegated to the federal government. Instead, each state has the authority to set the conditions for a valid marriage within its borders, subject to limits set by its own constitution and the U.S. Constitution.
Historically, states have exercised discretion in recognising marriages performed in other states, particularly regarding "public policy exceptions." These have included refusing to recognise out-of-state polygamous marriages, underage marriages, incestuous marriages, and, notably, interracial marriages.
The Defense of Marriage Act (DOMA), passed by Congress in 1996, defined marriage as a legal union between one man and one woman for interpreting federal law. This prevented the federal government from recognising same-sex marriages, even if they were recognised by state law.
In 2003 and 2008, the Massachusetts and California Supreme Courts, respectively, ruled in favour of same-sex marriage, concluding that their state constitutions required them to permit it. The California ruling was later found to be unconstitutional, and same-sex marriage was allowed to resume.
The Federal Marriage Amendment (FMA) has been proposed as an amendment to the U.S. Constitution to define marriage as a union between one man and one woman, preventing same-sex couples from marrying. However, this proposal failed to gain sufficient support in Congress.
While some argue that state laws limiting marriage to heterosexual couples violate the U.S. Constitution, others counter that these laws are constitutional and that the definition of marriage should be left to the democratic process. The Supreme Court has declined to declare a federal constitutional right to same-sex marriage, leaving the issue to the states to decide.
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Marriage, sexual orientation, and the Supreme Court
The Constitution of the United States does not define marriage as between a man and a woman. In fact, it does not mention marriage at all. This means that it is not a power delegated to the federal government to regulate. The Supreme Court's mandate is to determine the constitutionality of laws, and in this case, the inquiry should end where the silence of the Constitution on the issue of marriage demands judicial inaction.
However, the Supreme Court has often considered its own opinions about the Constitution rather than referring directly to the document itself. This has resulted in the Court creating a constitutional right to marriage, which some argue ignores the Constitution and renders the 10th Amendment dead. The 10th Amendment states that:
> "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
The people and the states have constitutional rights, including the right to determine whom, if anyone, should be given the right to marry.
Historically, marriage has been considered valid if it fulfilled the requirements of the marriage law of the state where the marriage took place. States have also exercised a "public policy exception" by refusing to recognize out-of-state polygamous marriages, underage marriages, incestuous marriages, and interracial marriages.
The Federal Marriage Amendment (FMA) was a proposed amendment to the Constitution that would have legally defined marriage as a union of one man and one woman, preventing judicial extension of marriage rights to same-sex couples. This amendment was introduced multiple times but failed to pass in the House of Representatives and the Senate.
The Supreme Court has also declined to declare a federal constitutional right to same-sex marriage. In 2013, the Court was urged to make this declaration when challenging California's marriage amendment (Proposition 8), but it chose not to. In 1972, the Court also dismissed an appeal from a Minnesota Supreme Court decision upholding the state's marriage laws, which was considered a ruling on the merits and is binding precedent.
While the definition of marriage as between a man and a woman has a "disparate impact" on the ability of homosexuals to marry their chosen partner, this does not violate the Constitution unless it can be proven that such laws were enacted with the sole intent of discriminating against homosexuals. There is no "fundamental right" to marry a person of the same sex, and homosexuals do not meet the criteria for a "suspect" or "quasi-suspect" class that calls for "heightened scrutiny". Therefore, even if marriage laws classify based on sexual orientation, this classification is subject only to "rational basis" review, which defers to legislative choices.
Despite this, some state supreme courts have ruled that their state constitutions require the state to permit same-sex marriage, as seen in Goodridge v. Department of Public Health in Massachusetts and In Re Marriage Cases in California. In contrast, thirty states have passed state constitutional amendments defining marriage as between one man and one woman.
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Frequently asked questions
No, the Constitution does not mention marriage and therefore does not define it as between a man and a woman.
The Federal Marriage Amendment (FMA) was a proposed amendment to the United States Constitution that would have legally defined marriage as a union of one man and one woman. The FMA would also have prevented judicial extension of marriage rights to same-sex couples. However, the FMA failed to pass in Congress in 2006.
While the Constitution does not define marriage, each state is free to set the conditions for a valid marriage, subject to limits set by the state's own constitution and the U.S. Constitution. Several states have passed constitutional amendments defining marriage as between one man and one woman, but these have been increasingly found to be unconstitutional.
