The Fourteenth Amendment should extend to same-sex marriage

Later this month, the Supreme Court will hear Hollingsworth v. Perry, a civil rights case which seeks to overturn California’s Proposition 8. Passed in 2008, Prop 8 amended the California State Constitution to ban same-sex marriage. Several same-sex couples then challenged the law, saying it violates the Equal Protection Clause of the Constitution. Last week, President Obama encouraged the Supreme Court to overturn the measure and declare same-sex marriage a constitutional right. In this case, the President is correct – constitutionally, marriage laws must be applied equally to all couples.

The Equal Protection Clause of the Fourteenth Amendment reads in relevant part “No state shall … deny to any person within its jurisdiction the equal protection of the laws.” In the 1967 case Loving v. Virginia, the Supreme Court invalidated laws that outlawed interracial marriage, citing this clause.

The Court’s logic in this case was simple – under Virginia’s laws, Richard Loving, a white man, was allowed to marry a white woman and receive the legal benefits and rights associated with the status. However, he was unable to marry his wife Mildred because she was African American. Conversely, Mildred could marry an African-American man but not a white one. This resulted in the laws being applied differently to people of different races and therefore was unconstitutional.

Similarly, laws against same-sex marriage apply laws differently to different people. In 41 states and all territories and possessions except the District of Columbia, a same-sex couple is unable to marry. However, those states all allow opposite-sex couples to marry. This discrepancy is unconstitutional. (Theoretically, a state could outlaw marriage for everyone and this would be constitutional – there is no constitutional right to marriage, only to marriage equality.) Under the Equal Protection Clause, laws that apply differently to homosexuals and heterosexuals are unconstitutional.

Additionally, even if it were argued that sexual orientation is not a protected class under the Equal Protection Clause, it would not matter. Gender is clearly covered by the Equal Protection Clause, as established by cases far too numerous to name. In those 41 states, a woman is legally allowed to marry a man and vice versa. This is fine if they are heterosexual. However, if the man is homosexual, he cannot legally marry a man, and likewise the woman, if she is a lesbian, cannot legally marry another woman. Just as Virginia statute in the Loving case applied laws differently to different races, laws prohibiting same-sex marriage apply laws differently to people of different sexes. Therefore, even if sexual orientation were not covered under the Equal Protection Clause, the fact that gender is covered is enough to render Proposition 8 and other similar laws unconstitutional.

Of course, supporters of Proposition 8 are sure to present several arguments in its favor during arguments. For instance, they might argue that historically, marriage has been defined as between one man and one woman, and therefore this is what the laws should reflect. However, the situation is not nearly this simple. Marriage has been defined many ways throughout history. In various societies at various times throughout history, “marriage” has been defined to include one man and multiple wives, one man, one wife, and several concubines or one woman and multiple men. Also, despite what some claim, same-sex marriage has been recognized by societies much older than ours. In the year 1061, Pedro Díaz, a Spanish man, married another man, Muño Vandilaz, in a ceremony in the Galician region.

Clearly marriage was not always defined as between one man and one woman, or even between some number of men and some number of women. After all, 950 years ago, same-sex couples were included in the definition of “marriage.” So even if “it’s always been that way” were an acceptable argument for anything (and it’s not) it would not apply here because it is simply untrue.

Keep in mind that until the Loving decision, President Obama’s own parents would not have been allowed to marry in many states. Opponents of interracial marriage argued that it would be detrimental to the couple’s children. Today, the child of one such couple is President of the United States. Clearly, that argument was wrong. Adoptions by same-sex couples are rising as more states legalize same-sex marriage. Yet people still make the same argument they made with interracial couples – it will be bad for the children. Perhaps a future President will prove the cynics wrong.