Marriage Rights October 12, 2017

Interracial Marriage The U.S. Supreme Court ruled that state laws banning interracial marriage violated the Equal Protection Clause in Loving v. Virginia (1967). Mildred and Richard Loving had been sentenced to a year in prison for violating the state’s anti-miscegenation law, the Racial Integrity Act of 1924. The government of Virginia could not demonstrate a compelling governmental interest for marriage discrimination based on race.

How About Same-Sex Marriage? For government to treat same-sex couples differently than opposite-sex couples it must demonstrate a rational basis. The opponents of same-sex marriage struggle to come up with a legal argument. (God thinks homosexuality is an abomination is NOT a legal argument.) The legal arguments against gay marriage are essentially the following: If same-sex couples are allowed to marry, then opposite sex couples will abandon the institution of marriage. The result will be that more children will be raised by unmarried couples. The government has a legitimate interest in promoting intact families, so it has a legitimate interest in prohibiting same-sex marriage.

Windsor v. United States In 2013, the Supreme Court ruled the Defense of Marriage Act (DOMA) unconstitutional because it treated lawfully married same-sex couples differently than other couples. The vote was 5-4 with Justice Kennedy joining the liberal justices as the swing vote. Because of the ruling, the federal government was no longer able to discriminate against same-sex marriage couples in taxes, Social Security, inheritance, and hundreds of other ways.

Scalia’s Dissent In an angry dissent, Justice Scalia predicted that the Windsor ruling would pave the way for lower courts to strike down state laws against same-sex marriage. He was right! "By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition." --Antonin Scalia

Lower-Courts on Same-Sex Marriage Subsequently, one federal court after another struck down laws against same- sex marriage. Some judges even cited Scalia’s dissent. The courts concluded that states have no rational basis for outlawing gay marriage.

6th Circuit Ruling In 2014, an appeals court in Ohio upheld a state ban on same-sex marriage. The U.S. Supreme Court agreed to hear the case on appeal.

Obergefell v. Hodges (2015) The Supreme Court voted 5-4 that the 14th Amendment requires states to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state.

Kennedy Wrote the Opinion

But, but, but . . . The Texas Supreme Court has kept alive a lawsuit arguing that the city of Houston could not extend health and life insurance benefits to the spouses of same-sex married couples that it extends to opposite- sex couples.

Masterpiece Cakeshop v. Colorado Civil Rights Commission, 2018 The U.S. Supreme Court is hearing a case involving a Colorado baker accused of violating Colorado’s civil rights laws for refusing to bake a wedding cake for a same-sex couple. The baker argues that having to bake a cake for a same-sex couple violates his freedom of religion and freedom of expression. The Trump administration has filed a brief with the Court taking the side of the baker. “Forcing Phillips to create expression for and participate in a ceremony that violates his sincerely held religious beliefs invades his First Amendment rights.”

What You Have Learned What was the significance of Loving v. Virginia? What was the significance of Windsor v. United States? How has the Windsor decision affected laws against same-sex marriage? What is the current status of same-sex marriage?