Malcolm Rivera
The US Constitution does not explicitly mention same-sex marriage. However, the Supreme Court has ruled that same-sex marriage is a fundamental constitutional right guaranteed under the Fourteenth Amendment. This ruling came in the landmark civil rights case of Obergefell v. Hodges in 2015, which found that the fundamental right of same-sex couples to marry on the same terms as opposite-sex couples is protected by the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. Prior to this, same-sex marriage was legalized in some states through court rulings, state legislation, and direct popular votes, while other states had constitutional amendments banning it. The journey to marriage equality in the US was a long one, with efforts to legalize same-sex marriage beginning in the 1990s and facing opposition from religious groups and conservatives.
| Characteristics | Values |
|---|---|
| Year of first state legalization | 2004 |
| First state to legalize | Massachusetts |
| Year of nationwide legalization | 2015 |
| Supreme Court decision | Obergefell v. Hodges |
| Supreme Court decision year | 2015 |
| Supreme Court vote | 5-4 |
| Constitutional Amendment | Fourteenth |
| Clause | Due Process and Equal Protection |
| Number of states at legalization | 36 |
| Number of states at nationwide legalization | 50 |
| Repeal of DOMA | 2022 |
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What You'll Learn
The US Constitution does not mention same-sex marriage
In 2015, the Supreme Court ruled in Obergefell v. Hodges that the fundamental right of same-sex couples to marry is guaranteed by the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. This decision was based on the understanding that marriage is a fundamental right inherent in the liberty of the person and that marriage provides valuable social benefits that should not be denied to same-sex couples.
The road to nationwide marriage equality was a long one, spanning decades of United States history. Efforts to legalize same-sex marriage began in the 1970s, with civil rights campaigning in support of marriage without distinction as to sex or sexual orientation. In 1993, the issue gained prominence when the Supreme Court of Hawaii ruled in favour of marriage equality, leading to federal and state actions to explicitly abridge marriage on the basis of sex.
Despite the lack of explicit mention in the Constitution, the Supreme Court's ruling in Obergefell v. Hodges established that same-sex couples have the same right to marry as everyone else, guaranteeing their right to full and equal recognition under the law. This ruling was a landmark decision, with strong dissents from the Court's conservatives, who argued that the majority was substituting their policy views for those of the voters.
While the US Constitution does not explicitly mention same-sex marriage, the Supreme Court's interpretation of Constitutional rights and freedoms has led to the recognition of marriage equality as a fundamental right in all 50 states.
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Same-sex marriage is a constitutional right
The topic of same-sex marriage in the United States has been a subject of debate and legal action for several decades. While some states began recognizing same-sex marriage as early as 2004, it wasn't until June 26, 2015, that the Supreme Court ruled in Obergefell v. Hodges that same-sex marriage is a constitutional right in all 50 states. This decision was based on the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment, which guarantee the fundamental right to marriage and equal protection under the law.
The road to achieving this milestone was long and challenging. Efforts to legalize same-sex marriage began in the 1970s, with civil rights campaigns supporting marriage without distinction as to sex or sexual orientation. In 1993, the issue gained prominence when the Supreme Court of Hawaii ruled in favor of same-sex marriage, leading to federal and state actions to explicitly restrict marriage to opposite-sex couples, such as the 1996 Defense of Marriage Act (DOMA). Despite these obstacles, momentum built, and by 2011, public support for same-sex marriage had reached 50% nationwide.
In 2012, the NAACP, a leading civil rights organization, declared its support for same-sex marriage as a civil right. This was followed by a significant Supreme Court ruling in 2013, United States v. Windsor, which struck down DOMA for violating the Fifth Amendment, leading to federal recognition of same-sex marriage. This set the stage for the landmark decision in Obergefell v. Hodges two years later, which legalized same-sex marriage nationwide.
Justice Anthony Kennedy's majority opinion in Obergefell v. Hodges acknowledged that same-sex marriage is a relatively new concept but emphasized that basic Constitutional notions of freedom guarantee the right to marry for all individuals. He outlined four guiding principles to support this conclusion: First, the right to marry is inherent in personal liberty, and marriage decisions are deeply intimate. Second, marriage is a unique two-person union that provides essential support and meaning to committed individuals. Third, marriage offers valuable social benefits, such as safeguarding children and families, which should not be denied to same-sex couples. Finally, marriage provides a range of legal and social benefits that states should not withhold from citizens based on their sexual orientation.
While the Supreme Court's decision faced angry dissents from conservative justices and opponents of same-sex marriage, it represented a significant victory for human rights and civil rights organizations and a shift in public sentiment. The ruling ensured that same-sex couples across the country would be recognized equally under the law and enjoy the same rights and protections as opposite-sex couples.
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The Supreme Court's role in same-sex marriage
The US Constitution does not explicitly mention same-sex marriage. However, the Supreme Court has played a pivotal role in recognising and protecting the rights of same-sex couples to marry.
In 2003, the Massachusetts Supreme Judicial Court, in the case of Goodridge v. Department of Public Health, held that it was unconstitutional under the state constitution to restrict marriage based on sex. This decision made Massachusetts the first state to legalise same-sex marriage. Subsequently, from 2004 to 2015, a combination of state court rulings, state legislation, direct popular votes, and federal court rulings expanded marriage rights to same-sex couples in thirty-six states.
During this period, the US Supreme Court declined to intervene in same-sex marriage cases, such as in Baker v. Nelson in 1972. However, in 2013, the Supreme Court struck down the Defense of Marriage Act (DOMA) in United States v. Windsor, marking a significant shift. The Court ruled that DOMA violated the Fifth Amendment, leading to federal recognition of same-sex marriage and benefits for married couples.
In 2015, the Supreme Court issued a landmark ruling in Obergefell v. Hodges, establishing same-sex marriage as a national right. The Court held that the fundamental right to marry, on the same terms as opposite-sex couples, is guaranteed by the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. This decision ensured that all fifty states recognised same-sex marriage, marking a significant victory for the LGBTQ+ community and their supporters.
Despite the Supreme Court's ruling in Obergefell, some conservative lawmakers and religious groups have continued to challenge the legal foundations of same-sex marriage. State legislators in several states have introduced resolutions urging the Court to reconsider its decision, arguing that it is not "settled law." These efforts reflect a broader conservative strategy to shift the perception of same-sex marriage as an established civil right. However, as of 2022, DOMA has been repealed and replaced by the Respect for Marriage Act, which protects same-sex marriages under federal law.
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State laws and same-sex marriage
The availability of legally recognized same-sex marriage in the United States expanded from one state (Massachusetts) in 2004 to all fifty states in 2015 through various court rulings, state legislation, and direct popular votes. States each have separate marriage laws, which must adhere to rulings by the Supreme Court of the United States that recognize marriage as a fundamental right guaranteed by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
In 2003, the Massachusetts Supreme Judicial Court ruled in Goodridge v. Department of Public Health that it was unconstitutional under the Constitution of Massachusetts for the state to abridge marriage on the basis of sex. This was a significant milestone in the journey towards marriage equality in the United States. The legalization of same-sex marriage in Massachusetts sparked a reaction from opponents, resulting in further legal restrictions being written into state statutes and constitutions.
Since 2003, courts in several states have delivered victories to both opponents and supporters of same-sex marriage. While these court cases have been based on state constitutional provisions, they have not been subject to review by the U.S. Supreme Court. One notable exception was the suit alleging that California's Proposition 8 violated the U.S. Constitution, which was filed in a federal district court. This case gave the nation's high court the opportunity to determine whether the U.S. Constitution guarantees the right of same-sex couples to marry.
In June 2013, the Supreme Court of the United States struck down Section 3 of the Defense of Marriage Act (DOMA) in United States v. Windsor, ruling that it violated the Fifth Amendment to the U.S. Constitution. This landmark civil rights case led to federal recognition of same-sex marriage and ensured that married couples would receive federal benefits connected to either their state of residence or the state in which their marriage was solemnized.
On June 26, 2015, the Supreme Court, in Obergefell v. Hodges, ruled that the fundamental right of same-sex couples to marry on the same terms and conditions as opposite-sex couples is guaranteed by the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. This decision legalized same-sex marriage nationwide, with the exception of American Samoa and sovereign tribal nations. However, some states, such as Alabama, Kentucky, and North Carolina, have laws that permit discrimination against same-sex couples by government officials and organizations.
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Public opinion on same-sex marriage
Approval of same-sex marriage is notably higher among younger generations. In the 2022 General Social Survey, almost 80% of 18–34-year-olds either agreed or strongly agreed that same-sex couples should have the right to marry. A 2022 Public Religion Research Institute poll also found majority support for same-sex marriage in every state except Mississippi. Additionally, a June 2021 CBS News/YouGov poll revealed that while two-thirds of Republicans over 45 are opposed to same-sex marriage, opinions among Republicans under 45 are almost evenly split, with 52% opposed and 48% in support.
The increase in public support for same-sex marriage has been influenced by various factors. For example, the 2015 Supreme Court ruling that established a constitutional right to same-sex marriage contributed to a surge in support for LGBTQ+ rights. However, this was met with a backlash from social conservatives, who launched campaigns against the LGBTQ+ community, particularly targeting transgender individuals.
Despite the overall upward trend in support for same-sex marriage, there have been recent signs of a slight decline. A 2024 Public Religion Research Institute survey found that support for same-sex marriage had decreased from 69% in 2022 to 67% in 2023. Similarly, support for nondiscrimination protections for LGBTQ+ individuals in employment, housing, and public accommodations fell from 80% in 2022 to 76% in 2023. These shifts in opinion were largely driven by changing conservative attitudes towards LGBTQ+ protections.
Overall, while public opinion on same-sex marriage in the United States has generally become more favourable, the decline in support in recent years highlights the ongoing complexities and polarisation surrounding this issue.
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Frequently asked questions
No, the US Constitution does not mention same-sex marriage. The Constitution is silent on the issue of marriage, and therefore, it is not a power delegated to the federal government to regulate.
No, same-sex marriage is legal in the US. In 2015, the Supreme Court ruled in Obergefell v. Hodges that the fundamental right of same-sex couples to marry is guaranteed by the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the US Constitution. This ruling made same-sex marriage legal in all 50 states.
The key arguments in favour of same-sex marriage included the idea that the right to marry is a fundamental right inherent in the liberty of the person, and that marriage has valuable social benefits that should not be denied to same-sex couples.
