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Religious Tolerance logo

Same-sex marriage (SSM)

Excerpts from past Supreme Court rulings on
marriage, and consensual sexual behavior.

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"SCOTUS" is an acronym for "Supreme Court of the United States"

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SCOTUS' rulings on marriage as a fundamental right:

When the Justices of the Supreme Court discuss motherhood, marriage, and similar feel-good topics, they tend to be very positive.

The following list was assembled by the American Foundation for Equal Rights, a pro-LGBT group proposing equal rights for persons of all sexual orientations and gender identities. The list also appears on the Wikipedia web site. 1 We have copied it here and have added a few comments to the list.

It is important to realize that in the early statements listed below, the justices undoubtedly were referring to marriages restricted to the voluntary union between one woman and one man. The concept of two women or two men marrying may never have occurred to the justices at the time.

The United States Supreme Court has in at least 14 cases since 1888 CE that have described marriage as a fundamental right. The passages are:

  1. Maynard v. Hill, 125 U.S. 190 (1888) Marriage is "the most important relation in life" ... and "the foundation of the family and society, without which there would be neither civilization nor progress."

  2. Meyer v. Nebraska, 262 U.S. 390 (1923) The right "to marry, establish a home and bring up children" is a central part of liberty protected by the Due Process Clause of the 14th Amendment of the U.S. Constitution.

  3. Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) Marriage is "one of the basic civil rights of man" ... [and] "fundamental to the very existence and survival of the race."

  4. Griswold v. Connecticut, 381 U.S. 479 (1965) "We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions."

    This passage has probably been quoted more than any other excerpt from a U.S. Supreme Court ruling on marriage. It is often read out during marriage ceremonies for same-sex couples.

  5. Loving v. Virginia, 388 U.S. 1 (1967) "The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men [sic]."

    This case legalized interracial marriages across the United States. At the time that this ruling was made by the Supreme Court, such marriages had been banned in 16 contiguous states in the southeast quadrant of the United States. In some states, the bans criminalized interracial couples who cohabited. The bans were instantly vaporized by the high court's decision.

  6. Boddie v. Connecticut, 401 U.S. 371 (1971) "[M]arriage involves interests of basic importance to our society" ...[and is] "a fundamental human relationship."

  7. Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974) "This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment [of the U.S. Constitution]."

  8. Moore v. City of East Cleveland, 431 U.S. 494 (1977) "[W]hen the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation."

  9. Carey v. Population Services International, 431 U.S. 678 (1977) "[I]t is clear that among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage, procreation, contraception, family relationships, and child rearing and education."

  10. Zablocki v. Redhail, 434 U.S. 374 (1978) "[T]he right to marry is of fundamental importance for all individuals."

  11. Turner v. Safley, 482 U.S. 78 (1987) "[T]he decision to marry is a fundamental right" ...[and an] "expression of emotional support and public commitment."

  12. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment [of the U.S. Constitution]. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life."

  13. M.L.B. v. S.L.J., 519 U.S. 102 (1996) "Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as ‘of basic importance in our society,’ rights sheltered by the Fourteenth Amendment [of the U.S. Constitution] against the State’s unwarranted usurpation, disregard, or disrespect."

  14. Lawrence v. Texas, 539 U.S. 558 (2003) "[O]ur laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, and education. ... Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do."

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Comparison of Supreme Court rulings about private sexual behavior by members of the LGBT community:

However, when Justices discuss less ethereal and more nitty-gritty topics like sexual behavior -- particularly sex by two persons of the same gender -- strong differences of opinions emerge:

Lawrence v. Texas (2003-JUN-26) involved a court challenge to a Texas law that had criminalized same-gender private sexual activity by adults. By a 6 to 3 vote, the majority of Supreme Court Justices found that the law was unconstitutional. The ruling was sufficiently broad to also declare unconstitutional similar laws in 12 other conservative states: Alabama, Florida, Idaho, Kansas, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Utah and Virginia. More details. Lawyers for the plaintiffs were stunned at the ruling because they had expected that the "sodomy laws" in the other 12 states would have to be fought one state at a time in separate lawsuits over many years.

Supreme Court Justices Anthony Kennedy and Antonin Scalia took opposite positions on the decriminalization of same-gender sexual behavior:

  • Writing for the majority Justice Kennedy stated that:

    "The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. Their right to liberty under ... (the Constitution) gives them the full right to engage in their conduct without intervention of the government. ... [They] are entitled to respect for their private lives...The state cannot demean their existence or control their destiny by making their private sexual conduct a crime. ... In our tradition the State is not omnipresent in our home. ... Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." 2

  • Writing for the minority, Justice Scalia wrote a blistering, critical opinion. He took the unusual step of reading his dissent in person from the bench. He said in part:

    "The court has largely signed on to the so-called homosexual agenda. ... The court has taken sides in the culture war. ... This reasoning leaves on shaky, pretty shaky grounds, state laws limiting marriage to opposite-sex couples. ... State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity ... every single one of these laws is called into question by today's decision," 2,3

Justice Scalia also wrote that the majority Justices pretended that they have left enough freedom:

"... so that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada ... Do not believe it ... [The majority opinion] dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned." 4

Justice Scalia's prediction that U.S. courts would make future rulings to legalize same-sex marriage came true one year later in 2004, when the Supreme Court of Massachusetts required the state legislature to change its marriage laws and become the first state to legalize SSM in the U.S. Ten years later, by mid-2014, the number of states with marriage equality had grown to 19 states and the District of Columbia. In addition many state and federal courts had recently ruled in favor of SSM, but their decisions have been stayed pending appeals.

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An essay on a related topic:

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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. "Constitutional law: Marriage as a fundamental right," Wikipedia, as on 2014-JUN-17, at: http://en.wikipedia.org/ The first part of the above essay is directly copied from the Wikipedia web site, with a few additional comments. It is being reused in this web site by permission under Wikipedia's Creative Commons Attribution-Share-Alike License 3.0. See: http://creativecommons.org/
  2. "High Court Rejects Sodomy Law," CBS News, 2003-JUN-26, at: http://www.cbsnews.com/
  3. "Supreme Court strikes down Texas sodomy law," CNN.com Law Center, 2003-JUN-26, at: http://www.cnn.com/2003/
  4. Tim Harper, "Sodomy laws struck down: Highest U.S. court says Texas statute unconstitutional. Dissenter warns of legalized marriage for homosexuals," Toronto Star, 2003-JUN-27, Page A3.

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The second part of this essay is copyrighted © 2014 by Ontario Consultants on Religious Tolerance 
Originally posted: 2014-JUN-19
Latest update: 2014-NOV-25
Author: B.A. Robinson

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