Malcolm Rivera
The notion of one man, one woman in the context of marriage has been a subject of legal debate in the United States, with lawsuits filed asserting that state laws limiting marriage to this definition violate the US Constitution. While the Constitution does not explicitly reference marriage, the Supreme Court has been urged to recognize same-sex marriage as a constitutional right. In 2013, the Court declined to do so, and the federal definition of marriage as the union of one man and one woman was struck down, largely due to the federal government's tradition of deferring to state definitions. This has led to discussions about the role of democratic processes in defining marriage and the impact of changing definitions on the institution. The inclusion of women in the Constitution, on the other hand, has been a subject of historical analysis, exploring the ideologies and intentions behind their place in the government's founding documents.
| Characteristics | Values |
|---|---|
| Federal recognition of same-sex marriage | Not required by states as per the 1996 Defense of Marriage Act (DOMA) |
| Supreme Court ruling on DOMA | Struck down in 2013 in United States v. Windsor |
| Basis of Supreme Court ruling on DOMA | Deviation from the tradition of federal government deference to state definitions of marriage |
| Supreme Court ruling on same-sex marriage | Declined to declare a federal constitutional right to same-sex marriage in 2013 |
| Constitutional mention of marriage | None |
| Constitutional violation by one-man-one-woman marriage laws | No violation unless proven that laws were enacted with the sole intent of discriminating against homosexuals |
| Discrimination based on sex | No, as neither sex is at a disadvantage |
| Discrimination based on sexual orientation | No, as marriage licenses do not inquire about sexual orientation |
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What You'll Learn
- The US Constitution does not explicitly mention same-sex marriage
- Federal courts have been petitioned to declare a constitutional right to same-sex marriage
- Same-sex marriage laws do not discriminate based on sex
- Same-sex marriage definitions impact homosexuals' ability to marry
- The Supreme Court struck down the federal definition of marriage in 2013
The US Constitution does not explicitly mention same-sex marriage
In 2013, the Supreme Court of the United States struck down the Defense of Marriage Act (DOMA) for violating the Fifth Amendment to the US Constitution in the landmark civil rights case of United States v. Windsor. This led to the federal recognition of same-sex marriage, with federal benefits for married couples. Despite this, opponents of same-sex marriage continued to fight for state laws that defined marriage as the union of one man and one woman.
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 decision made same-sex marriage legal in all fifty states. The ruling was penned by Justice Anthony Kennedy, who acknowledged that same-sex marriage is a relatively new concept but stated that basic Constitutional notions of freedom mean "same-sex couples may exercise the right to marry".
While some religious groups oppose same-sex marriage, several religious organisations support marriage equality. Additionally, the Human Rights Campaign has been at the forefront of the fight for marriage equality, gathering supporters across the country and rallying in front of the Supreme Court. The journey to nationwide marriage equality has been a long one, spanning decades of US history and facing opposition from religious and philosophical groups, as well as conservative members of the Supreme Court.
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Federal courts have been petitioned to declare a constitutional right to same-sex marriage
The 14th Amendment guarantees equal protection and due process, but the question of whether this requires a state to license a marriage between persons of the same sex has been a matter of debate. Federal courts have been petitioned to declare a constitutional right to same-sex marriage, with dozens of lawsuits filed across the country asserting that state laws limiting civil marriage to the union of one man and one woman violate the Constitution.
In 2013, the Supreme Court was urged to declare a federal constitutional right to same-sex marriage in the case challenging California's marriage amendment (Proposition 8). The Court declined to do so, upholding state bans and reversing the lower courts' decisions. However, in 2015, the Supreme Court heard arguments on same-sex marriage again, and a majority (5-4) of justices ruled in favor of the plaintiffs, determining that gay, transgender, and lesbian couples had the same rights as heterosexual couples under the Fourteenth Amendment. This landmark decision, Obergefell v. Hodges, granted same-sex couples in all 50 states the right to full, equal recognition under the law.
Before the Supreme Court's ruling in 2015, civil unions for same-sex couples existed in many states, but these created a separate but equal standard. At the federal level, couples were denied access to more than 1,100 federal rights and responsibilities associated with marriage. The Defense of Marriage Act (DOMA), signed into law in 1996, defined marriage as between a man and a woman, allowing states to deny marriage equality. While some states, like Massachusetts and California, achieved marriage equality through court rulings and legislation, others introduced constitutional amendments defining marriage as between a man and a woman.
Opponents of same-sex marriage argue that there can be no "fundamental right" to marry a person of the same sex because it is not "deeply rooted in this Nation's history, legal traditions, and practices." They also contend that marriage laws do not discriminate on the basis of sex or sexual orientation and that the decision to redefine marriage should be left to the democratic process. However, supporters of marriage equality argue that marriage laws have a "disparate impact" on homosexuals' ability to marry their chosen partner, and that the Constitution grants them equal dignity and protection under the law.
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Same-sex marriage laws do not discriminate based on sex
The debate surrounding same-sex marriage has been a contentious issue in the United States, with conflicting rulings at both the federal and state levels. While some states have asserted that laws limiting marriage to the union of one man and one woman violate the US Constitution, others argue that the Constitution permits such definitions of marriage. The Supreme Court's decision in United States v. Windsor struck down the federal definition of marriage as the union of one man and one woman, but this was based on the deviation from federal deference to state definitions.
The argument that same-sex marriage laws do not discriminate based on sex stems from the understanding that marriage laws are neutral. Marriage licenses do not inquire about an individual's sexual orientation, and the law does not put either sex at a disadvantage relative to the other. While the definition of marriage as between one man and one woman may have a ""disparate impact" on homosexuals, it does not violate the Constitution unless it can be proven that these laws were enacted with the sole intent of discriminating against homosexuals.
However, it is important to note that despite legal gains, same-sex couples and the LGBT community continue to face discrimination in various forms. While marriage equality is now a reality, some lawmakers have proposed exemptions based on religious or moral beliefs, allowing individuals and organizations to refuse services to same-sex couples. These exemptions have been criticized for lacking protections to prevent discrimination against LGBT individuals in areas such as employment, housing, and access to services.
Internationally, there have been mixed developments regarding same-sex marriage laws. Some countries, like Belgium, Austria, and Greece, have legalized same-sex marriage or recognized the rights of same-sex couples, while others continue to struggle with discrimination and exclusion. The debate over same-sex marriage has been ongoing, and it has led to a strengthening of the constitutional order through the forging of new meanings and bonds.
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Same-sex marriage definitions impact homosexuals' ability to marry
Same-sex marriage, also known as gay marriage, is the marriage of two people of the same legal sex. As of 2025, same-sex marriage is legally recognised in 38 countries, with a total population of 1.5 billion people, accounting for 20% of the world's population. Notably, some countries with socially liberal attitudes towards homosexuality, such as Japan and Italy, do not legally recognise same-sex marriage.
The legal status of same-sex marriage varies across the world, with some countries constitutionally banning same-sex marriage, and others recognising it. In 2010, the European Court of Human Rights (ECHR) ruled in Schalk and Kopf v Austria that the human rights of an Austrian same-sex couple who were denied the right to marry had not been violated. The court stated that same-sex unions are not protected under Article 12 of the ECHR, which exclusively protects the right to marry of opposite-sex couples. However, in 2021, the court ruled in Fedotova and Others v. Russia that countries must provide some form of legal recognition to same-sex couples, even if it is not marriage.
In the United States, the 1996 federal Defense of Marriage Act (DOMA) stated that states did not have to recognise same-sex marriages from other states and that marriage was defined as the union of one man and one woman under federal law. The Supreme Court struck down the federal definition of marriage in the 2013 case of United States v. Windsor, but the decision was based on the deviation from the tradition of the federal government deferring to state definitions of marriage. The Constitution of the United States does not explicitly address same-sex marriage, and there is ongoing debate over whether state laws limiting marriage to one man and one woman violate the Constitution.
The legal recognition of same-sex marriage has implications for transgender and intersex individuals, as their ability to marry may depend on how sex is legally defined within a jurisdiction. Some jurisdictions recognise a legal change of gender, allowing individuals to marry in accordance with their adopted gender identity.
Same-sex marriage has been a topic of discussion within various religious traditions, with most world religions historically opposing it on the basis of sacred texts and religious tradition. However, in the early 21st century, some denominations within Judaism, Christianity, Hinduism, and Buddhism have taken a more favourable stance or allowed autonomy in the matter.
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The Supreme Court struck down the federal definition of marriage in 2013
The US Constitution does not explicitly define marriage as between one man and one woman. However, several sources state that the Constitution and Supreme Court precedents permit states to define marriage as the union of one man and one woman. This is based on the argument that there can be no "fundamental right" to same-sex marriage, as it is not "deeply rooted in this Nation's history, legal traditions, and practices".
In 2013, the Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA) in the case of United States v. Windsor. DOMA, passed in 1996, defined marriage as "a legal union between one man and one woman as husband and wife" and stated that states did not have to recognize same-sex marriages from other states. The Supreme Court's decision invalidated the section of DOMA that prevented federal recognition of same-sex marriages for purposes such as Social Security and tax benefits.
The Supreme Court's ruling in United States v. Windsor was based largely on the deviation of DOMA from the tradition of the federal government deferring to state definitions of marriage. This decision did not establish a federal constitutional right to same-sex marriage. Instead, it affirmed the principle that states have the right to define marriage according to their own democratic processes.
While the Supreme Court's decision in United States v. Windsor was a significant step towards marriage equality, it did not immediately legalize same-sex marriage nationwide. It was only in 2015, with the Supreme Court's ruling in Obergefell v. Hodges, that the Fourteenth Amendment was interpreted to require all US states to recognize same-sex marriages, making same-sex marriage federal law.
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Frequently asked questions
In 1972, the Supreme Court received an appeal from a Minnesota Supreme Court decision upholding that state's marriage laws against an early challenge by a homosexual couple. The case was "dismissed for want of a substantial federal question." This is considered a ruling on the merits and is binding precedent. In the case challenging California's marriage amendment (Proposition 8) in 2013, the Supreme Court was urged to declare a federal constitutional right to same-sex "marriage." The Court declined to do so.
If the law clearly puts neither sex at a disadvantage relative to the other, it cannot be asserted that the marriage laws discriminate based on sex.
The marriage laws are neutral on their face, because marriage licenses do not inquire as to a person's "sexual orientation."
While the definition of marriage has a "disparate impact" on the ability of homosexuals to marry the person of their choice, this alone does not offend the Constitution unless it can be proven that such laws were originally enacted with the sole intent of discriminating against homosexuals.
