The Right to Same-Sex Marriage Has Always Existed in the USA - The Supreme Court Ruling Explained

The Right to Same-Sex Marriage Has Always Existed in the USA - The Supreme Court Ruling Explained

It has been a monumental leap for equality in the United States - the Supreme Court have declared that all 50 states license same-sex marriage and recognise marriages from other states. However, whilst many understand that same-sex marriage is now legal all across America, the legal background as to why this has happened is often not fully understood. Even more surprising is that the Supreme Court ruling states that the right to same-sex marriage has always existed ...but only now is it being protected.


Today at Unlock the Law we take a look at the Supreme Court ruling on same-sex marriage to understand why the court came to the conclusion, not only because it is the right thing to do morally, but because it is what the US constitution commands.

Firstly, a little about the US Constitution

The US Constitution is the most supreme form of law in the United States. It contains both 'the rules about the rules' and the most fundamental rights and freedoms for Americans. The Constitution originally had seven articles with the first three articles enshrining how government was to be formed, the next three describing the relationship between state and federal government - the seventh article establishes the procedure subsequently used by the thirteen States to ratify it.

The Constitution was subsequently amended 27 times, considering it was established in 1789, that is a very small number. The first ten amendments to the constitution are known as the Bill of Rights, and detail the fundamental rights and protections afforded to Americans. Most of the further seventeen amendments also establish further individual civil rights. It is with these Constitutional rights that we concern ourselves in relation to the same-sex marriage ruling. The US constitution is the shortest written Constitution in force and yet, almost everyone managed to miss the right to same sex marriage hiding in there.

So, where exactly in the Constitution is the right to same-sex marriage?

The Fourteenth Amendment to the United States Constitution provides that all Americans must be afforded equal protection under the law. All Americans must be treated equally under the law, all Americans must be legally allowed to marry whoever they want. Logical legal conclusion.

The Fourteenth amendment was originally introduced as a means of affording greater protection to African Americans under the law. The Fourteenth amendment has however, been used previously to secure equal rights in marriage.

In the case of Loving v Virginia in 1967, an interracial couple were sentenced to one year in prison for marrying each other in Virginia. However, the Supreme Court unanimously overturned their conviction, saying:

"Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."

The case was cited as precedent in the most recent Supreme Court same-sex marriage case, Obgerfell v Hodges which eventually secured that to illegals same-sex marriage was unconstitutional.

The Supreme Court Ruling

Four cases were consolidated in order to ask the Supreme Court two questions

  1. Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
  2. Does the Fourteenth Amendment require a state to recognise a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

The Supreme Court held that the Fourteenth Amendment did require states to license marriages between two people of the same sex, and to recognise marriages of two people of the same sex, and the reasons why (in addition to logical legal conclusion) can be seen in the majority opinion:

"The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex."

Some other relevant legal principles were stated as follows:

  1. The right to personal choice regarding marriage is an inherent feature of liberty and autonomy.
  2. The right to marry is a fundamental right as it is an institution which supports the union of two committed individuals like no other.
  3. Protecting the right to marry for all Americans protects the family and allows for related rights of child rearing, pro-creation and education.
  4. The Nations traditions dictate that marriage is a "keystone of our social order". So there.

Same-sex marriage in the United States is a fascinating legal story with many ups and downs, a story which in our option has carried on too long - we are glad it finally has a happy ending.

Family Law UK Guides

For more information on family law in the UK, same-sex marriage or as it's now known "marriage" read our family law guides.

YouTube: To watch a star studded account of the 2010 same sex-marriage case before the Supreme Court (including George Clooney, Brad Pitt, Martin Sheen, Jamie Lee Curtis, Jane Lynch, Kevin Bacon) click here.

Holiday Cancellation Policies - Can I Cancel My Ho...
No More Roaming Charges - The EU Put An End to Unf...


Unlock The Blog

Please enter your name.
Invalid email address