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Religious Tolerance logo

Same-sex marriage (SSM)

Part A:
Different views on SSM and marriage equality:

1. Is it the federal or state governments
that define which couples are married?
2. Are states free to define marriage
eligibility in any way that they wish?
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"LGBT" is an acronym referring to the Lesbian, Gay,
Bisexual, and Transgender/Transsexual community.
"SSM" is an acronym referring to marriage by same-sex couples.

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Question 1. Who defines which couples are married -- the federal or individual state governments?:

The U.S. Constitution was adopted in the year 1787. For the next two centuries, there was nearly universal agreement among politicians and constitutional specialists that it is a responsibility for the government of each individual state to define who can marry there.

There was one exception: It was in Utah during the 19th century conflict over polygyny. This involves the marriage of one man to multiple women. The federal government stepped in, overruled Utah's marriage laws, and declared polygyny to be illegal. However, that was a special case because Utah at the time was a territory -- not a state -- and thus had relatively limited responsibilities and authority.

The answer to the question is clear. The Tenth Amendment to the U.S. Constitution clearly requires state control over marriage. According to Wikipedia, that amendment defines the U.S. Constitution's:

"... principle of federalism by providing that powers not granted to the federal government nor prohibited to the States by the Constitution are reserved to the States or the people." 1

It would be an unworkable system to leave control of marriage up to the individual citizen, if for not other reason than the federal and state governments provide over a thousand benefits and protections to married couples. Thus, some central control over who is eligible for these programs is needed.

Before 1996, since the U.S. Constitution does not mention marriage, politicians and constitutional experts agreed that defining marriage was solely the responsibility of the District of Columbia and each individual state. Each is expected to define precisely which couples can marry within their borders. For example, some states allowed first cousins to marry even though it doubled the chances of their children being born with significant genetic disorders; other states did not allow this. Each state defines the minimum age to marry, and sometimes allowed younger people to marry if they had their parents' consent.

States sell marriage licenses, regulate who may solemnize a marriage, and register marriages after they are completed. Some states attempt to reduce impulse marriages by setting a minimum waiting period before people can marry. Any federal government programs that involved marriage were automatically made available to any and all couples who had been legally married in their state.

During 1996: That consensus came to a sudden halt with the federal Defense of Marriage Act (DOMA). The bill was passed by a truly bipartisan group of members of Congress and signed into law by President Bill Clinton (D). DOMA required the federal government to restrict its marriage-related programs by granting federal protections and benefits only to marriages involving one woman and one man. The DOMA law ripped a basic right away from states that had been theirs for centuries. Political conservatives who had jealously guarded states' rights in the past didn't seem to object. The animus and fear by many Republican and Democratic senators and representatives in Congress towards the LGBT community was so great that it overwhelmed their concern that the bill was clearly unconstitutional.

After mid-2013: In its ruling in Wilson v. United States, the U.S. Supreme Court declared Section 3 of the DOMA law to be unconstitutional. This was the section that required federal marriage programs to not recognize same-sex marriages legally consecrated in states. Today, once again, there is general agreement among political, religious, and social conservatives and liberals, as well as between Republicans and Democrats, that states have the responsibility and authority to define which couples are permitted to marry. Once married in their state, same-sex couples then automatically qualify for the 1,138 federal government benefits and protections on a par with opposite-sex couples.

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Question 2. Are states free to define marriage in any way that they wish?

Although almost everyone now agrees that only the states have the duty and authority to define who is eligible to marry, there remains a question about whether states are free to define marriage eligibility in any way that they want to.

A state can change its restrictions on marriage in two ways, either by having its governor sign a bill into law that its Legislature has passed, or by having a majority of their voters pass an amendment to the state's constitution. Starting on election day in 2004-NOV, many states held plebiscites that amended their state constitution to prohibit same-sex couples from marrying. A decade later, about thirty states had amended their constitution to ban SSMs. Others had passed laws prohibiting same-sex marriage.

At various times, some states have adopted marriage laws or added clauses in their their state constitution in order to ban marriage to couples where a partner is too young, or where both partners are of the same sex, or the couple are related as first cousins, or the couple is interracial, etc.

Many conservatives and liberals have taken opposing views on whether these bans are valid or not:

  • Most conservatives seem to believe that all of these bans are automatically constitutional for the simple reason that each amendment was passed by a majority of voters in the state and each law was passed by a majority of legislators who in turn had been elected by a majority of voters.

  • Most liberals seem to believe that none of the bans of same-sex marriages are constitutional because they allow most opposite-sex couples to marry but forbid all same-sex couples from marrying. They point to the equal treatment and equal protection clauses of the 14th Amendment which require that all federal and state laws treat people -- and thus couples -- equally.
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Liberals often refer to the ironically named lawsuit Loving v. Virginia. The Lovings were an interracial couple who were legally married in the District of Columbia who moved to the adjacent state, Virginia, after they married. The state of Virginia had an active statute on their books called the Racial Integrity Act of 1924. It limited marriages to persons of the same race. The couple was arrested and charged with a felony that could have sent both of them to prison for five years. In 1967, the U.S. Supreme Court unanimously overturned the Virginia law and similar miscegenation laws in 15 other states. Persons of different racial backgrounds have been able to marry throughout the US ever since.

In this conflict between:

  • A state law or constitution which bans marriage by a couple who differed in race, and

  • The equal treatment and equal protection clauses of the U.S. Constitution's 14th Amendment which requires that all federal and state laws treat people -- and thus couples -- equally,

the U.S. Supreme Court ruled that the bans on interracial marriage in 16 states were unconstitutional. Determining what legislation and what amendments to state constitutions are constitutional and which are unconstitutional is a major responsibility of the U.S. Supreme Court.

A WikiBook reference book titled "United States Government/Federalism and State Authority ' states:

"... state governments are very similar to the structure of the federal government, with three branches (legislative, executive, judicial). Each state has its own constitution, but the specifics of the laws, regulations, and the system itself differs from state to state. In this respect, states are not mere subordinate provinces of Washington, DC, but sovereign states in Union with each other. State governments are thus very powerful compared to their counterparts in most other countries. However, the U.S. Constitution remains the ultimate authority as supreme law of the land. 2 [Emphasis by us]

The United States Constitution itself states clearly and unambiguously in Article VI, § 2, that:

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States. 1 [Emphasis not in the original]

Many liberals have drawn parallels between Virginia's past ban of interracial marriage and over 30 states currently banning same-sex marriages. In both cases, states divided their population into two groups -- either by race or sexual orientation. They allowed one group to marry and prohibited marriage by all couples in the other group. Many federal and state courts have issued rulings declaring state SSM bans to be unconstitutional. They have often cited Amendment 14 to the U.S. Constitution which states that laws in the U.S. must give Americans equal protection as justification for their decision to legalize SSM. Two marriage equality lawsuits in federal District Courts in Utah and Oklahoma are the most recent court rulings that legalized SSM by citing Amendment 14.

Defendants in these SSM cases often argue that there are valid reasons why the state should be able to ban SSMs even though that the ban violates Amendment 14. Currently, a common argument is based on "responsible parenthood" a conservative belief that children develop best when raised by their genetic mother and father. The is a hard sell, because it implies that same-sex couples and infertile opposite-sex couples are irresponsible parents because they may adopt a child who is not related to either of its parents, or they might engage in in vitro fertilization or artificial insemination and conceive a child who is related to only one parent. Such arguments have not fared well recently in courts.

Even though the federal constitution itself declares itself to be the "ultimate authority as supreme law of the land" and in spite of the equal treatment and access clauses in its Amendment 14, many religious, social and political conservatives still believe that states have complete freedom to restrict marriage in any way they wish, including the banning of SSMs.

We are continually surprised that conservative Attorneys General, Governors, and other officials in various states -- all of whom have sworn an oath of office requiring them to obey and support the U.S. Constitution -- still assert that their state Constitution trumps the federal Constitution.

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This discussion continues in Part B

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "Tenth Amendment to the United States Constitution," Wikipedia, as on 2012-JUN-15, at:
  2. "United States Government/Federalism and State Authority," WikiBooks, 2014-JAN-12, at:
  3. "U.S. Constitution, Article VI," Legal Information Institute, Cornell University Law School, undated, at:

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Site navigation: Home > Homosexuality > Same-sex marriage > Menu > Different views on SSM > here

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Copyright © 2014 by Ontario Consultants on Religious Tolerance
Originally written: 2014-JAN-29
Latest update: 2014-JUL-13
Author: B.A. Robinson

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