Gay Marriage is a Fundamental Right Under the U.S. Constitution
Two federal cases are moving forward challenging the legality of bans on same-sex marriage. One case, stemming out of Massachusetts, asserts that the Defense of Marriage Act unjustly hinders states from fully recognizing the equal rights of gay and lesbian citizens. Another case, out of California, is challenging Proposition 8, the ballot measure passed last year that rescinded the rights of gays and lesbians to marry in the state.
This particular lawsuit has made a big splash this year, in part because the two lawyers behind it are Ted Olson and David Boies, the two attorneys that argued Bush v. Gore, respectively. Today, Boies penned an op-ed in the Philadelphia Inquirer that made a pretty damn bold statement. To play off a Miracle on 34th Street reference, Boies essentially said, "Yes, Virginia, there is such a thing as a constitutional right to gay marriage."
Boies makes the case that if you look at U.S. Supreme Court jurisprudence, it's clear that precedent falls on the side of letting people love whoever it is that they want to love.
"The constitutional issue is quite simple," Boies writes. "The Supreme Court repeatedly has held that the right to marry the person of your choice is a fundamental human right guaranteed by the equal-protection and due-process clauses of the Constitution."
Boies goes on to cite some of the cases that have become quite familiar to us all over the past couple of years. There's Loving v. Virginia, the case that ended state bans on inter-racial marriage. There's Zablocki v. Redhail, which overturned a Wisconsin law that banned people delinquent on their child support payments from getting married. And then there's Lawrence v. Texas, the 2003 case that finally overturned statewide laws banning sexual relations between people of the same gender.
In all of these cases, Boies argues, the U.S. Supreme Court made one thing clear: there should be no limitations on the right to marry for individuals.
How timely, given today's vote in Maine that could very well overturn a state law recognizing same-sex marriage.
Boies ends his piece with a curious quote from Justice Anthony Kennedy, who many people think will be the swing vote on any same-sex marriage case that goes before the court. It's a quote that Justice Kennedy wrote when he gave the majority opinion in the Lawrence v. Texas decision, and it's a brilliant example of why it's appropriate to view marriage rights as compatible with constitutional rights.
"Times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress," Kennedy wrote. "As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."
Gay marriage is a constitutional right. That might make the folks at the National Organization for Marriage squirm, but they better get used to hearing that sentence. History is on the side of equality, and so is the U.S. Supreme Court's jurisprudence.
Michael Jones
is a Change.org Editor. He has worked in the field of human rights communications for a decade, most recently for Harvard Law School.
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