Is Same-Sex Marriage Constitutional?

The Supreme Court will soon decide one of the great issues of our time. Is same-sex marriage protected by the U.S. Constitution? Most federal courts have said that it is. But last November, the U.S. Court of Appeals for the Sixth Circuit said ‘no.’ They said the issue of same-sex marriage belongs to the states. Their decision created a conflict within the federal circuit courts which convinced the Supreme Court that they will have to decide the issue.

When the Supreme Court announced their decision to hear the case, they asked the opposing parties to argue two important questions. First, “Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?” and second “Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?” These are the questions the Supreme Court will decide. A decision is expected in June.

Most federal courts believe that the word “liberty” in the Due Process Clause in the Fourteenth Amendment protects same-sex marriage. The key word is “liberty.” They base their interpretation on recent Supreme Court decisions. For example, in 2003, the Supreme Court struck down a Texas law prohibiting homosexual sex because of the word “liberty.” Many of the so-called rights extended to homosexuals are based on the theory that homosexuality is a “liberty” right protected by the Fourteenth Amendment.

However, there is a serious problem with this claim. The Nineteenth Amendment suggests that the word “liberty” in the Fourteenth Amendment could not possibly refer to same-sex marriage or homosexual sex. In fact, it strongly suggests that the courts have twisted this word to conflict with its historic interpretation.