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Religious Tolerance logo

Different views on SSM and marriage equality:

Background and overview:

Who defines marriage? What criteria are used?:
The U.S. Constitution & Congress in conflict.
Conservatives & liberals in conflict.

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What the U.S. Constitution says: marriage is defined by the states:

Most high school students who have taken a course in the history of the United States government would be aware of the tenth amendment to the U.S. Constitution, a.k.a. the tenth entry of the Bill of Rights. It states:

"Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." 1

That is: any power that the U.S. Constitution does not specifically assign to the Federal Government comes under the authority of each state, or the people themselves, -- unless the Constitution contains a clause that prohibits states from exercising that power.

Marriage is not mentioned at all in the U.S. Constitution. Thus, by default, the definition of marriage does not rest with the federal government. It is a power exercised by individual states. And so, there are 51 similar definitions of marriage in the U.S.: one written by each of the 50 state governments and one by the District of Columbia:

  • Some states allow first cousins to marry; others prohibit such marriages on the basis that the rate of serious genetic defects in newborns is approximately doubled when parents are first cousins, when compared to the marriages between two unrelated individuals.

  • States define the minimum age required for an engaged couple to marry.

  • In 1865, enslaved couples were not permitted to marry. During 1865, at the conclusion of the civil war, marriage was redefined to include all couples of the same race.

  • In 1967, 16 contiguous states in the American south east still prohibited interracial marriages. This was eliminated by the U.S. Supreme Court that year when they redefined marriage in the ironically named case: "Loving v. Virginia."

  • In the late 19th century, some states redefined marriage to exclude deaf couples. These laws were repealed, one state at a time. Marriage was redefined by those states in the early 20th century to include deaf couples.

  • Starting in 2004, approximately 29 states amended their constitutions to restrict marriages to the union of one woman and one male.

  • Starting with Massachusetts in 2004, and gradually expanding to include the District of Columbia and 17 states by the end of 2013, marriage was redefined to include loving, committed same-sex couples.

  • By 2014-JAN, federal District Courts in Utah and Oklahoma have redefined marriage to include same-sex couples. However, these rulings have now been stayed to prevent such couples from actually marrying until the matter is decided by the 10th U.S Court of Appeals.

This constitutional setup is relatively rare in the world. The United States and Mexico allow states to define marriage. But in most countries it, is a federal responsibility. Thus, for example, when the Canadian Parliament legalized same-sex marriage (SSM) in mid-2005, SSMs became simultaneously available across all of the ten Canadian provinces and three territories.

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1996: What the representatives and senators in Congress believed: marriage is up to Congress to define:

From the founding of the United States until 1996, there were two foundational principles governing marriage:

  • The District of Columbia and the individual states defined who is eligible to marry within their jurisdiction, and

  • The federal government granted benefits, obligations and protections to all couples -- and to their children -- whose marriages had been legally recognized in DC or a state.

However, the animus by members of Congress towards the Lesbian, Gay, Bisexual, Transgender and Transsexual (LGBT) community and the Congress members'' fear that same-sex marriages (SSM) might in some way adversely affect opposite-sex marriages was so great that they decided to ignored the Constitution and Bill of Rights. They terminated both foundational principles by passing the federal Defense of Marriage Act (DOMA). Section 3 of that act states that even if a same-sex couple is legally married somewhere in the U.S., the federal government would not recognize their marriage. As far as federal government programs were concerned, all same-sex married couples were viewed as "legal strangers" with the status of mere roommates. They and their children were denied the benefits and protections of 1,138 federal marriage programs that given to married opposite-sex couples. For no obvious reason other than the sluggishness of the courts, it took 17 years to correct the obvious error.

By late 2012, many lawsuits had resulted in rulings by various federal district courts and two U.S. Courts of Appeal. All have agreed that at least Section 3 of the federal DOMA law was unconstitutional. This is the section that prohibited federal government from recognizing marriages legally solemnized in the U.S., if the married couple was of the same sex. Three DOMA cases were subsequently appealed to the U.S. Supreme Court. The court granted certiorari to one -- they agreed to hear the Wilson v. United States case -- in late 2012. The court heard oral arguments in 2013-MAR, and delivered their ruling in 2013-JUN-26. They agreed with the lower courts by declaring Section 3 of the DOMA law unconstitutional, thus finding that Congress was in error in 1996 when it passed the DOMA law and attempted to grab the authority to define marriage away from the states.

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What many religious and social conservatives believe: The United States is a pure democracy:

Gallup reported on 2014-JAN-31 that the ten most conservative states in the U.S. were, in order: Wyoming (the most conservative at 51.4%), Mississippi, Idaho, Utah, Montana, Arkansas, South Carolina, Oklahoma, Tennessee and Alabama at 44.7%. Same-sex marriage is legal in only three of these states, Idaho, Oklahoma, and Utah. Idaho ocurred because of a state court ruling. Oklahoma and Utah were decided because of federal District Court rulings; those two decisions have been stayed.

In a pure democracy, states would be free to define marriage any way that the voters or legislature agreed with: That is, any plebiscite passed by a majority of the voters is valid, no matter what its content specifies. Any law passed by a Legislature is valid, even if it conflicts with the state or federal Constitution. Thus, commenting on a Utah lawsuit Herbert et al. v. Kitchen et al., where federal District Court Judge Robert Shelby ruled that Utah's constitutional amendment banning same-sex marriage was unconstitutional:

  • Brian Brown, president of the National Organization for Marriage -- whose sole purpose is to preserve marriage inequality across the U.S. -- said:

It was outrageous that this brazen judge appointed by President Obama would substitute this view for the sovereign decision by both the Utah Legislature and the people of the state, who voted overwhelmingly in favor of defining marriage as the union of one man and one woman." 2

Brown did not mention, and may not have known, that both Senators from Utah -- who are Republicans -- recommended that President Obama appoint Judge Shelby for the post of District Court judge.

  • Liberty Counsel issued a statement about the same court decision:

    "It is outrageous that a single, activist, federal judge thinks he has the power to rewrite the definition of marriage and then force his oxymoronic definition on the people of Utah..

    "Marriage is not just an emotional bond between two people memorialized by a legal document. It is an institution ordained of God to rightly order procreation and provide the best environment for the well-being of children." 3

  • Ryan T. Anderson, spokesperson for the Heritage Foundation, said:

    "One district judge should not be able to misread the [U.S. Supreme] Court’s recent decisions and force any state to act contrary to the meaning and purpose of marriage. ... Whatever one thinks about marriage, the courts shouldn’t be redefining it. America should make marriage policy through the democratic process rather than allowing judges to dictate it through decisions that have no grounding in our Constitution." 4

  • Utah Gov. Gary Herbert (R) issued a statement saying:

    "I firmly believe this is a state-rights issue and I will work to defend the position of the people of Utah and our State Constitution." 5

That is, according religious and social conservatives, the vote of the people in the form of a plebiscite to amend the state constitution, or the vote of a legislature to pass a law restricting marriage to one woman and one man trumps any rulings by the courts that declare the amendment or law unconstitutional.

This belief system leads inevitably to the "tyranny of the majority." This occurs when a majority of voters or lawmakers who have strong feelings of animus towards an unfavored group in society and are able to pass laws violating that group's fundamental rights without regard for the content of the state and federal constitutions. This problem seriously concerned the founders of the country. They tried to prevent it by making certain basic rights out of reach of the voters and legislatures.

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What most others believe: The United States is a constitutional democracy:

Gallup reported on 2014-JAN-31 that the ten most liberal states in the U.S. were, in order: The District of Columbia (the most liberal at 38.1%), Vermont, Massachusetts, Delaware, New York, Hawaii, Oregon, Maine, California and New Jersey at 26.5%. Same-sex marriage is legal in nine of these states. SSM is expected to be legal in Oregon as a result of a citizen initiative in 2014-NOV.

In a constitutional democracy in which states define marriage, their definitions must not conflict with the state or federal constitution:

The Baptist Press noted that:

"In this same lawsuit, [Judge] Shelby ruled Utah's 2004 amendment violates equal protection and due process rights under the U.S. Constitution. The amendment and two related Utah laws deny the state's:

"... gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason." 5

In a constitutional democracy, legislatures can pass any laws for which they can obtain a majority vote, and the citizens can amend the constitution in any way as long as a majority votes in favor. However, a major responsibility of the state and federal courts is to compare such legislation and amendment with the requirements of the state and federal Constitution. If a conflict exists, then it is the responsibility of the courts to declare the law or amendment null and void because it is unconstitutional. Thus, for example, in the case of the U.S. Supreme Court's ruling in Wilson v. United States, the U.S. Supreme Court found that the federal DOMA law was in conflict with the U.S. Constitution because the definition of marriage is a state, not a federal responsibility. In the case of the federal District Court in Utah, Judge Shelby ruled that the amendment to the Utah Constitution that restricted marriage to one woman and one man violated the 14th Amendment to the U.S. Constitution which guarantees every American -- including heterosexuals, bisexuals, asexuals, homosexuals -- equal treatment and equal protection in all matters, including marriage access.

Considering all of the court rulings that have declared laws and state constitutional amendments to be unconstitutional, it is should be obvious to most observers that the U.S. is a constitutional democracy -- where the federal Constitution is the highest law of the land, -- and not a pure democracy -- where the will of the majority is automatically law.

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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. "Bill of Rights: the Charters of Freedom," Government archives, at:
  2. Brian Brown, "National Organization for Marriage Commends US Supreme Court for Staying Utah Federal Judge's Ruling Redefining Marriage," National Organization for Marriage, 2014-JAN-06, at:
  3. Michael Gryboski, "Conservatives Applaud Supreme Court's Decision to Halt Gay Marriage Ceremonies in Utah," Christian Post, 2014-JAN-07, at:
  4. Katrina Trinko, "Supreme Court Stops Same-Sex Marriages in Utah," The Heritage Network, 2014-JAN-06, at:
  5. Tom Strode, "Gay marriage in Utah blocked by high court," Baptist Press, 2014-JAN-07, 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-12
Latest update: 2014-JAN-21
Author: B.A. Robinson

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