Constitutional Topic: Marriage – The U.S. Constitution Online – USConstitution.net

Constitutional Topic: Marriage

The Constitutional Topics pages at the USConstitution.net site are presented
to delve deeper into topics than can be provided on the Glossary Page or in the FAQ
. This Topic Page concerns Marriage. Though not mentioned in the Constitution, marriage has
become a constitutional hot-button topic in recent years.

Source material for this topic page includes the Catholic Encyclopedia, Jannah.org, FaithNet,
and the Alternatives
to Marriage Project

A Short History

Marriage has a long history in the religious world. It has become so
ingrained in the social fabric of the people of the nation, and indeed of the
world, that the benefits of marriage to society at large became apparent.
Because this religious rite had so many secular benefits, it became recognized
by the secular world, and became subject to governmental definition and

In the religious world, marriage is almost exclusively the committed union
between a single man and a single woman. Generally, the union is blessed or
consecrated by a representative of the religion. An example is the presiding
priest in a wedding ceremony. Marriage is found in all societies and religions,
including the major religions of the West like Judaism, Christianity, and
Islam, as well as those of the East like Buddhism and Hinduism.

In modern Christianity, marriage, and the love and sex that accompanies it,
is seen as a blessing from God. Children are a prime goal of marriage, and
continued marriage is of importance to the continuation of the faith as
children are raised by devout parents.

Islam sees marriage as so important that it does not recognize the need for
clerics to be celibate as in some Christian sects, such as Catholicism. The
purpose of marriage in Islam is to provide company, to encourage love, to
procreate, and to live in peace under the commands of Allah.

As one final example, Hindu marriage is also found in sacred texts. It is
one of the sixteen essential rituals of a person’s life. Married people have
responsibilities to their parents, children, to guests, the community, and to
the dead. Marriage is seen as a sacred duty.

Civil Marriage

With so many disparate religions seeing marriage as a crucial part of the
religious life of their adherents, with so many benefits, it was inevitable
that government would also see these same benefits. In the end, the goal of
good government is maintaining order and providing for its members. Secular
marriage is seen in this light.

The benefits of marriage to society, apart from any religious concern or
duty, include the following:

  • Procreation
  • Known, or at least presumed, paternity
  • Child and spousal support
  • Stability in family life
  • Survivor’s rights

Not all of these require marriage. There is no secular need for marriage to
have procreation, for example. But without marriage, paternity could be
difficult to discern, making child support difficult to manage. Note that this
list is not exhaustive, and the list shows only the benefits of marriage to
society, not the benefits of marriage to the individual. The benefits the
individual feels can be quite subjective.

These two segments of society, religion and government, have common reasons
for encouraging marriage. This creates two kinds of marriage: secular and
religious. Generally speaking, in the United States, when one is married in a
religious setting, the civil marriage also begins. A church is not required,
however, for civil marriage. The stereotypical visit to a justice of the peace,
marriage license in hand, joins two people in civil marriage. The ability to be
both religiously and civilly married at the same time is a convenience.

One other form of marriage has existed and continues to exist in some
states. Common law marriage recognizes a de facto state of marriage when
there has been no actual ceremony in a religious or civil setting. Common law
marriage is marriage for all civil purposes, but it has a “waiting period.” In
a common law marriage, a couple is assumed to be married if they have lived
together for a certain period of time. The concept of common law marriage is
mostly historical – most states no longer recognize new common law marriages,
and the number of those that do is dwindling.

The Controversy

Married couples enjoy many secular privileges and benefits. These privileges
and benefits are not always exclusively available to married couples, but some
are. For those for whom marriage is not an option, these privileges and
benefits might be unobtainable. This is of particular concern to homosexual
couples. Same-sex couples can feel the same level of personal commitment that
traditional couples feel. It is this sense of commitment, of love, that leads a
couple to decide to marry. Because society has long seen homosexual relations
as abnormal, there has never been a way for these couples to enjoy the benefits
of marriage. As attitudes about homosexuality have changed, homosexuals have
become more bold in their assertion of their rights. Since traditional couples
can marry, the argument is that homosexual couples should also be able to

Homosexual advocates seek not to redefine what marriage is for religion.
Instead, they seek to modify civil marriage to include them. There is
resistance to this from many religious groups who see marriage as based on
sacred practice, and for government to change its definition of marriage is to
reduce the sacred value of marriage. Advocates counter that civil marriage is
available to many people that any one particular religion would not permit
— gay marriage, in this case, is just another of those groups.

Opponents also see marriage having a shaky foundation in its current state,
with the loosening of social morals chipping away at marriage bit by bit. They
see promiscuity as damaging to children, child support, and to spousal support.
They see divorce as a major problem with marriage. The addition of gay marriage
to the mix would weaken it even further, perhaps to the point of collapse.
Advocates say that marriage would be strengthened by the committed
relationships of the gay couples. Problems with child support, spousal support,
and divorce would be no worse with gay couples than with traditional

Vermont and Comity

In 1999, the Vermont Supreme Court ruled that homosexuals as a class were
being discriminated against by their inability to marry. Under the Vermont Constitution, such discrimination was not
permitted. The Court directed the state legislature to create an institution
with all the same rights and privileges of marriage. Civil union was born. The
Vermont legislature made a new institution that resembled marriage in all ways
except in name. For all intents and purposes, when a couple joined in civil
union is in Vermont, they are to be treated as though married. Marriage,
however, is still reserved for traditional couples only.

The national fear at the time was that other courts would force other states
to recognize the joined couples from Vermont in some way. No other state had a
civil union law, so the couples seemed limited in where they could bring their
civil unions with them. Under the Comity
of the Constitution, the public acts of one state must be recognized
by other states. However, this clause has been allowed its own limitations by
the courts. Significantly, a couple that cannot be married in a state cannot go
to another state, get married there, and come back to continue in marriage. For
example, if a state has a minimum age of 16 to be married in the state, a pair
of 15-year-olds cannot travel to another state that allows them to be married,
get married, and return married. This principle has long been established in
U.S. law.

Regardless, and because most marriage restrictions that exist today are
based on age (older restrictions, based on race for example, have been ruled
unconstitutional), states feared courts would require them to recognize civil
unions in some way. The federal Defense of Marriage Act attempted to remove
this fear by allowing any state to ignore any same-sex union that was legal in
another state.

Massachusetts and Amendment

In 2004, the Massachusetts Supreme Judicial Court made a ruling similar to
that of the 1999 Vermont Supreme Court. However, the Massachusetts court said
that civil union was not enough — the legislature had to allow for
marriage. It ruled that even if marriage and some other tailored institution,
like civil union, were exactly the same, the difference would create a
separate-but-equal situation, and experience has shown that separate is
inherently unequal. With this ruling coming from a relatively large state,
national debate once again opened up.

Opponents called for a constitutional amendment specifically defining that
marriage is a union of a man and a woman. Some versions of the amendment
allowed states to create separate institutions for same-sex couples, and some
prohibited them specifically.

This version of the amendment was introduced during the 108th Congress in
the Senate as SJ 16 and in the House as HJ 56:

Marriage in the United States shall consist only of the union of
a man and a woman. Neither this Constitution, nor the Constitution of any
State, nor State or Federal law, shall be construed to require that marital
status or the legal incidents thereof be conferred upon unmarried couples or


As of this writing, the issue remains unresolved.

In early 2004, mayors in California and New York were performing or
authorizing the performance of same-sex marriages, in defiance of state law.
The legality of these marriages is unknown. In Massachusetts, the legislature
tried in vain to craft a constitutional amendment to reverse the decision of
the Supreme Judicial Court; even if one had been created, the amendment process
in Massachusetts would have required a several-year process to complete before
the Court could be overruled.

In 2008, the California Supreme Court overturned a state ban on same-sex
marriages, and in June, it directed that such marriages must be allowed to
proceed. In November, however, the voters of California approved a
constitutional amendment that defined marriage as being between a man and a
woman. The amendment took effect as soon as the results were certified, but the
status of marriages performed between June and November is unresolved. Many in
California, including the governor, have called for the state Supreme Court to
overturn the amendment, but there is question of the legality of such an
action. There is also question of whether a constitutional amendment can take
away a right that had been granted, at least for those married before the
amendment was enacted.