The issue of same-sex marriage has become more prominent in the American media dialogue since the Supreme Court legalized same-sex marriage in their landmark decision in Obergefell v. Hodges in June 2015.
To many that follow the court, this decision was no surprise and had come to be expected of the court based on the line of reasoning they had been using in cases relating to marriage, mainly between Loving v. Virginia to the U.S. v. Windsor. In the Loving case, the Court ruled interracial marriage bans to be unconstitutional, while in Windsor, the Court struck down the federal government’s Defense of Marriage Act (DOMA), which defined marriage as the union of one man and one woman.
Throughout history, the Court has left the institution of marriage to the states but has increasingly come to acknowledge marriage as a Fifth and 14th Amendment issue that is covered by substantive due process. This clause has allowed jurists, essentially, to test individual rights against the equality provision of the 14th amendment.
The text of this amendment reads, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
This provision has come to be read as protective of all kinds of individual rights and incorporates the liberties in the Bill of Rights to be protected from state intervention or regulation in fundamental personal freedoms. Marriage has come to be considered a right in the pantheon of personal American freedoms.
In Loving v. Virginia, Chief Justice Earl Warren writes in the majority opinion of the Supreme Court, “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival…. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”
This defined marriage as a substantive due process right and that states had to maintain equal protection of the laws relating to marriage.
So, when the Supreme Court ruled DOMA unconstitutional in U.S. v. Windsor, it used language that implied same-sex marriage would fall under equal protection of a personal liberty under the Fifth and 14th Amendments, which struck down the federal same — sex marriage ban, while implying that the bans be applied to the states if properly challenged in the future. That challenge, of course, came in the Obergefell case. Building off of “stare decisis” and case law, the majority opinion declaring same-sex marriage within the fundamental right to individual freedom of choice was predictable and justified.
This decision, however, may be right in terms of case law, and it may even fit into many Americans’ aspirations for equal protection under the laws, but it is not within the constitutional purview or jurisdiction of the Supreme Court.
The Constitution says nothing, mentions nothing and does not use the word marriage because it has forever been the case that marriage laws were under the governance powers of the states in the federal conception of our Union.
States were meant to be unique and distinctive political communities defined by democratic-republican principles of their people. Some states would be conservative, some liberal, some moderate and some just plain innovative. That way there would be a state that represented everyone’s beliefs without being forced into a one-size-fits-all policy that offends those who believe something different than the majority or rights-clamoring minority.
The issue of same-sex marriage is indicative of how the problem of slavery and racism pervert and pervade through all of American constitutional law and society. Due to the necessity of the Supreme Court stepping in to enforce the purpose of the 14th Amendment’s equality provision rectifying vestiges of African slavery in Loving v Virginia, the case law precedent was there for overruling the federal conception yet again.
And by having nine unelected judges declaring a new definition of a fundamental institution in human history — rather than letting the federal democratic process do the job that it was intended to perform — is further proof of that phenomenon. After all, our democratic-republican process involves state legislatures, state constitutions, referendums and, if properly agreed upon, constitutional amendments to codify the rights that the Supreme Court can justifiably review.