By Lyle Denniston
SCOTUSblog
This is the second of four articles explaining the constitutional controversy, now awaiting the Supreme Court’s attention, over same-sex marriage. The Court is scheduled to consider ten petitions on that issue at its private Conference on Friday. This article discusses the legal arguments in favor of same-sex marriage. Later articles will discuss the arguments against, and the options the Court has in considering the cases. The first article in this series can be found here. http://www.scotusblog.com/2012/11/same-sex-marriage-i-the-constitutional-standard/
Analysis
Two hallowed doctrines in American constitutional law — marriage as a “fundamental right,” and equality as the key to shared freedom — are the foundations of the arguments in favor of opening marriage to same-sex couples. Putting the two together — marriage equality — is the ambitious goal of that movement. That can be achieved by changes in state law — as has now been done in nine states: Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, and Washington, plus Washington, D.C. It also could be achieved by amending the U.S. Constitution, but that is a very difficult proposition not seriously contemplated now. It might be changed — at least to some degree — by Congress, but that is not a real prospect now.
Marriage as a legal matter is basically controlled by state law, since it is up to the states to decide who can marry. But marriage is also a constitutional matter. The Supreme Court, in discussing the right to marry, said as long ago as 1888 that marriage is “the most important relation in life,” and is “the foundation of the family and of society, without which there would be neither civilization nor progress.” And in 1965, the Court described marriage as “an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.” The Supreme Court is now being asked to make at least a beginning on deciding whether that is an institution that is reserved for “one man and one woman.” The arguments in favor of change are focused upon the single phrase: marriage equality.
