Malcolm Rivera
The US Constitution does not explicitly mention the right to marry, but the US Supreme Court has interpreted it to recognize the existence of several fundamental rights, including an individual's right to marry. This right has been upheld in various cases, such as Zablocki v. Redhail, where the Court struck down a Wisconsin law prohibiting a man from remarrying due to overdue child support payments. The Court asserted that the law interfered directly and substantially with the fundamental right to marry. The Fourteenth Amendment's Equal Protection Clause has also been invoked to challenge state laws prohibiting interracial marriage, with the Court in Loving v. Virginia overturning its previous decision and holding that Virginia's anti-miscegenation laws violated this clause. While the Federal Marriage Amendment (FMA) sought to define marriage as a union of one man and one woman, it failed to pass in Congress. Today, same-sex marriage is legal in all US states, and the Court has recognized marriage as an institution of both continuity and change, adapting to shifts in public attitudes and affirming marriage as a fundamental right.
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What You'll Learn
Marriage as a fundamental right
The US Constitution does not explicitly mention the term "marriage". However, the Supreme Court has interpreted the Constitution to recognize the existence of several fundamental rights that were not expressly stated, including an individual's right to marry.
In Zablocki v. Redhail (1978), the Court identified the right to marry as a "fundamental interest" that necessitates "critical examination" of governmental restrictions that "interfere directly and substantially" with this right. The Court's due process decisions have broadly defined a protected liberty interest in marriage and family, although no previous case had held marriage to be a fundamental right occasioning strict scrutiny.
The Court's decision in Zablocki v. Redhail struck down a statute that prohibited any resident under an obligation to support minor children from marrying without a court order. Such an order could only be obtained by demonstrating compliance with the support obligation and ensuring that the children were not likely to become public charges. This case set a precedent for interpreting the right to marry as a fundamental interest protected by the Constitution.
In Loving v. Virginia (1967), the Supreme Court reviewed the constitution of the Racial Integrity Act, overturning its previous decision in Pace v. Alabama. The Court held that Virginia's anti-miscegenation laws violated the Equal Protection Clause, stating that "there can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause." Following this decision, the Court struck down other laws that seemed to restrict an individual's right to marry, further solidifying the recognition of marriage as a fundamental right.
Additionally, in 2015, the Supreme Court issued a landmark decision in Obergefell v. Hodges, recognizing the right to marry for same-sex couples. The Court held that the government may not infringe on an individual's fundamental right to marry based on their sexual orientation. This decision reaffirmed the Court's interpretation of marriage as a fundamental right protected by the Constitution.
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Marriage and equal protection
While the US Constitution does not explicitly mention marriage, the Supreme Court has identified the right to marry as a "fundamental interest" that necessitates "critical examination" of governmental restrictions that "interfere directly and substantially" with this right. In the case of Zablocki v. Redhail (1978), the Court struck down a statute that prohibited any resident under an obligation to support minor children from marrying without a court order. The Court's due process decisions have broadly defined a protected liberty interest in marriage and family, recognising that marriage is a "profound union" embodying "the highest ideals of love, fidelity, devotion, sacrifice, and family".
The Fourteenth Amendment requires states to license and recognise marriages between two people of the same sex, as seen in Obergefell v. Hodges (2015). This case affirmed that marriage is a "centerpiece of social order and fundamental under the Constitution", with marriage laws impacting the related rights of child-rearing, procreation, and education. The Court noted that denying same-sex couples the right to marry harms and humiliates their children, burdens the liberty of the couple, and contradicts core precepts of equality.
The "synergy" between the Equal Protection Clause and the Due Process Clause has been highlighted, with some precedents relying on both clauses. While the Obergefell v. Hodges decision did not directly address the Equal Protection Clause argument, it acknowledged that the Constitution protects the right to marry and requires states to apply their marriage laws equally. This case centred on what constitutes "marriage" and who has the authority to define it.
The right to marry is not absolute, and certain restrictions related to marriage have been upheld by the Court. For example, in Califano v. Jobst (1977), the Court sustained a Social Security provision that revoked disabled dependents' benefits if they married someone who was not also entitled to receive disabled dependents' benefits. The Court found that benefit entitlement was based on actual dependency, and marriage typically terminates dependency on a parent-wage earner.
Additionally, religious liberty is protected in the context of marriage. Nonprofit religious organisations cannot be required to provide services or facilities for the solemnisation or celebration of a marriage, and their refusal does not create any civil claims. This ensures that religious beliefs and practices are respected while also upholding the rights of individuals to marry.
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Same-sex marriage
While the US Constitution does not explicitly mention marriage, the Supreme Court has identified the right to marry as a "fundamental interest" that necessitates "critical examination" of government restrictions that "interfere directly and substantially" with this right.
The legal recognition of same-sex marriage in the United States has been a long and contentious battle, with the first state to legalise it being Massachusetts in 2004. This was followed by a wave of federal and state actions to prevent the legal recognition of same-sex marriages, including the 1996 federal Defense of Marriage Act (DOMA). However, in 2012, the NAACP, a prominent civil rights organisation, declared its support for same-sex marriage, stating that it is a civil right.
In 2013, the Supreme Court struck down Section 3 of DOMA, ruling that it violated the Fifth Amendment to the US Constitution and leading to federal recognition of same-sex marriage. Two years later, 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 landmark ruling ensured that same-sex couples could marry on the same terms and conditions as opposite-sex couples, with all the accompanying rights and responsibilities.
The Respect for Marriage Act, which repealed DOMA in 2022, further solidified the legal recognition of same-sex marriages under federal law and in interstate relations. This act ensures that couples, regardless of sexual orientation, can enjoy the rights, privileges, dignity, stability, and protection that marriage affords.
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Interracial marriage
While the US Constitution does not explicitly mention marriage, the Court has identified the right to marry as a "fundamental interest" that necessitates critical examination of governmental restrictions that "interfere directly and substantially" with this right.
Historically, many US states had anti-miscegenation laws, which prohibited interracial marriage and, in some states, interracial sexual relations. Some of these laws predated the establishment of the United States, with the first law prohibiting interracial marriage passed by the Maryland General Assembly in 1691. The term "miscegenation" was first used in 1863 during the American Civil War by journalists to discredit the abolitionist movement by stirring up debate over the prospect of interracial marriage after the abolition of slavery.
In the late 19th and early 20th centuries, newly established western states continued to enact laws banning interracial marriage. By 1910, 28 states prohibited certain forms of interracial marriage, with eight states extending their prohibitions to include people of Asian descent. At least three attempts were made to amend the US Constitution to bar interracial marriage, with Representative Andrew King of Missouri proposing a nationwide ban in 1871, fearing that the Fourteenth Amendment would someday render laws against interracial marriage unconstitutional, as it eventually did.
During the Reconstruction period, Arkansas, Florida, Louisiana, Mississippi, Texas, South Carolina, and Alabama legalized interracial marriage, but these laws were later re-enacted and enforced when white Democrats took power in the South. In 1948, 30 out of the then 48 states enforced anti-miscegenation laws.
However, in 1967, the US Supreme Court ruled in Loving v. Virginia that anti-miscegenation laws were unconstitutional under the Fourteenth Amendment, which guarantees equal protection under the law. This landmark decision held that the freedom to marry a person of another race resides with the individual and cannot be infringed by the state. Since then, interracial marriage has been legal throughout the United States, and interracial marriages have been formally protected by federal statute through the Respect for Marriage Act since 2022.
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Marriage and religious liberty
The US Constitution's First Amendment ensures that religions, adherents of religious doctrines, and others are protected as they seek to teach the principles that are central to their lives and faiths. The First Amendment also states that:
> Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
In Zablocki v. Redhail, the Court identified the right to marry as a "fundamental interest" that necessitates "critical examination" of governmental restrictions that "interfere directly and substantially" with the right. The Court's due process decisions have broadly defined a protected liberty interest in marriage and family, but no previous case had held marriage to be a fundamental right occasioning strict scrutiny. The Court struck down a statute that prohibited any resident under an obligation to support minor children from marrying without a court order.
In Obergefell v. Hodges, the Court ruled that under the Fourteenth Amendment, all states must license a marriage between two people of the same sex and recognize such a marriage if it was lawfully licensed and performed in another state. The Court also noted that the right to marry is fundamental as a matter of history and tradition, and that rights arise from a better-informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era. Many who consider same-sex marriage to be wrong do so based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged.
In terms of religious liberty, nonprofit religious organizations, including churches, mosques, synagogues, temples, nondenominational ministries, interdenominational and ecumenical organizations, mission organizations, faith-based social agencies, religious educational institutions, and nonprofit entities whose principal purpose is the study, practice, or advancement of religion, and any employee of such an organization, are not required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage. Any refusal to provide such services shall not create any civil claim or cause of action. Furthermore, nothing in the Act shall be construed to diminish or abrogate a religious liberty or conscience protection otherwise available to an individual or organization under the Constitution of the United States or Federal law.
In the context of federal law, an individual shall be considered married if that individual's marriage is between 2 individuals and is valid in the State where the marriage was entered into. If a marriage is entered into outside of any State, it is considered valid if it is between 2 individuals and is valid in the place where it was entered into, and the marriage could have been entered into in a State.
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Frequently asked questions
The US Constitution does not explicitly deal with legal marriage. However, the US Supreme Court has interpreted the Constitution to recognise the existence of an individual's fundamental right to marry.
The FMA was a proposed amendment to the US Constitution that sought to legally define marriage as a union of one man and one woman, preventing the extension of marriage rights to same-sex couples. The amendment failed to pass in the House of Representatives and the Senate in 2006.
Civil marriage in the US is governed by state law. Each state sets the conditions for a valid marriage within the limits of its constitution and the US Constitution.
Yes, the US Supreme Court has reviewed cases challenging restrictions on the right to marry. For example, in Zablocki v. Redhail, the Court struck down a Wisconsin law prohibiting individuals from remarrying due to overdue child support payments. In Loving v. Virginia, the Court overturned its previous decision and held that Virginia's anti-miscegenation laws violated the Equal Protection Clause, recognising marriage as one of the 'basic civil rights of man'.
