Is Gay Marriage Unconstitutional?

In the wake of the US Supreme Court’s decision to strike down state bans on same-sex marriage (effectively legalising same-sex marriage across the United States), opponents of the move have asserted that the Supreme Court’s ruling is in fact, unconstitutional.

One such argument I have read is that the 14th Amendment (being the one referred to in this case) does not mention marriage, therefore attempting to justify the Court’s move on the grounds of the 14th Amendment is dishonest and wrong.

However, what the 14th Amendment does cover is civil rights. In particular, the paragraph below is quite telling:

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.

So it would seem to me that any State trying to ban same-sex marriage is therefore depriving those seeking same-sex marriage ‘equal protection of the laws’, in that, despite being US citizens, they are not permitted to get married in certain States. They are being denied equality in the eyes of the law by any State seeking to ban same-sex marriage.

I have also seen it argued that the Supreme Court has no jurisdiction in this case – yet this is what the Supreme Court exists to do:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority

This would once again seem to be quite clear. The Supreme Court has authority, under both the Constitution and the law, to make rulings on any case. The lack of a specific mention of marriage does not exclude marriage issues either!

Moreover, if this ruling is undemocratic (another argument I’ve seen), then it would seem opponents of this ruling actually want the minority to have their way this time – for a majority of Americans actually favour same-sex marriage. It’s also worth noting this includes religious folks as well.

So there is a fair of disingenuous arguing going on here. The conservative US Republicans who have repeatedly opposed same-sex marriage (and who, it could be argued, actually stand against Republican values in doing so) usually do so on religious grounds. Yet the early US governments were keen to avoid religion becoming entangled with government. Thomas Jefferson once said that the American people, through the First Amendment, had created a ‘wall of separation between church and state.

There is another aspect to this. By using religious-based arguments to make a case against same-sex marriage, the anti-gay marriage position is seeking to impose a religious value upon the entire population, regardless of other beliefs (or an absence of beliefs). They are quick to argue about the wrath of God, but this presupposes that God actually cares (and indeed, that God exists).

It should be simple really. Same-sex marriage is about extending rights so that two people of the same sex can marry. This doesn’t affect anyone else’s marriage, this doesn’t cheapen marriage, and it doesn’t deny rights to anyone else. What it boils down to is bigotry.

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