The Right to Same Sex Marriage is Protected by the US Constitution

Since the constitution does not address the question of marriage, 1) it should be up to the individual states to determine if same sex marriages are legal, 2) The Supreme Court will have to define this issue, or 3) Congress with the Necessary and Proper Clause of Article I, Section 8, the enforcement clause of the Fourteenth Amendment grants to Congress the power to pass legislation. The simple fact is that the civil right of equal treatment cannot constitute social reality by declaration. Civil rights protections function simply to assure every citizen equal treatment under the law depending on what the material dispute in law is all about. Law that is just must begin by properly recognizing and distinguishing identities and differences in reality in order to be able to give each its legal due. Supreme Court would conclude that a gay couple's challenge to a traditional marriage law did not even raise a "substantial federal question". That was the Justices" brief and apparently unanimous ruling in the case of Baker v. Nelson, and that ruling reverberates still, regularly cited by marriage defenders with the argument that it is the Court"s binding last word on the subject. http://www.businessinsider.com... The Baker argument of marriage defenders is a simple one: that it is a precedent set by the Court, and it cannot be set aside unless the Court itself does so. As the lawyers for the Republican leaders of the U.S. House of Representatives told the Justices in a filing in one of the new cases: "Baker controls this case". Baker stands for the proposition that a state may use the traditional definition of marriage without violating equal protection. It necessarily follows that Congress may use the same traditional definition of marriage for federal purposes without violating equal protection." http://www.businessinsider.com... The Defense of Marriage Act (DOMA) was enacted to prevent the policies of a single state from determining the policies of all the states and the federal government. About 20 years ago Hawaii"s marriage law violated the Equal Protection Clause of the Hawaii Constitution when it passed a same sex marriage law. Hawaii courts raised the specter that parties to same-sex relationships sanctioned as marriages in Hawaii might seek recognition of those marriages in every other state. Article IV of the U.S. Constitution requires that "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." There is a public policy exception"states are not required to accept contested policy judgments made by other states lest one state"s policy be foisted on every other state"but Congress sought to reinforce the public policy exception through the exercise of its constitutional power to "prescribe"the effect" to be given to state acts by confirming that no state had to give "effect" to same-sex marriages performed in other states. Section 2 of the Defense of Marriage Act provided as much while recognizing that some states might choose to redefine marriage to encompass same-sex couples. Section 3 of DOMA then defined marriage as between one man and one woman for purposes of federal law. United States v. Windsor and Hollingsworth v. Perry implicate two bedrock constitutional concepts. First is whether the laws at issue prohibit the exercise of the fundamental right to marry in violation of the Due Process Clause. Second is whether they treat some people differently because of their sexual orientation in violation of the Equal Protection Clause. In United States v. Windsor, the Court will review the decision by the U.S. Court of Appeals for the Second Circuit holding that Section 3 of the Defense of Marriage Act (DOMA), which defined marriage as one man and one woman for purposes of federal law, was unconstitutional. In Hollingsworth v. Perry, the Court will review the Ninth Circuit"s decision striking down Proposition 8, which California voters adopted in 2008 to reestablish the definition of marriage as the union of a man and a woman in that state after judicial action had redefined it to include same-sex couples. www.heritage.org/.../the-constitutionality-of-tra... A number of other governmental interests have been advanced in the marriage cases that easily pass normal rational basis review as well. In addition to citing the unique procreative ability of heterosexual couples, other defenses of Section 3 of DOMA, include: Preserving a uniform definition of marriage across state lines for purposes of allocating federal benefits; Protecting the federal treasury and respecting prior legislative judgments in allocating marital benefits on the understanding that they would apply only to heterosexual married couples; Defending state sovereignty and democratic self-governance; Exercising caution to avoid "the unknown consequences of a novel redefinition of a foundational social institution"; and Expressing a preference for optimal parenting arrangements by encouraging child-rearing in a setting with both a mother and a father. Significantly, the Supreme Court in Loving defined marriage as a "fundamental" right because it is one of the ""basic civil rights of man," fundamental to our very existence and survival." Yet marriage is "fundamental to our very existence" only because it is rooted in the biological complementarity of the sexes, the formal recognition of the unique union through which children are produced"a point emphasized by the fact that the Supreme Court cited a case dealing with the right to procreate for its holding that marriage was a fundamental right. Nothing in the Loving decision suggests that the fundamental right to marry should be extended to other relationships that did not share that unique attribute. To the contrary, the Court has repeatedly cautioned against the recognition of new fundamental rights lest the Court end up substituting its own judgment for that of the people. In fact, when the very challenge presented by the current cases was first presented to the Supreme Court 40 years ago, just five years after the Loving decision, the Court rejected it. www.heritage.org/.../the-constitutionality-of-tra... As the Supreme Court has often recognized, The Equal Protection Clause"is essentially a direction that all persons similarly situated should be treated alike. The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same. Accordingly, one of the issues in both Windsor and Hollingsworth is whether same-sex and opposite-sex relationships are similarly situated. This is a "threshold" inquiry, undertaken before application of the Equal Protection Clause, because the Equal Protection Clause is not even triggered if the relationships at issue are not similarly situated. Moreover, the issue is not whether the relationships might be similarly situated in some respects, but whether they are similarly situated in ways that are relevant "to the purpose that the challenged laws purportedly intended to serve. The ultimate question before the Court, then, is whether the decision to embark on such an experiment is to be made by the people, either through their legislatures or directly by voter initiative, or whether the Constitution, which is silent on this precise question, must be interpreted to have already answered the question because as it is, same sex marriage is not protected by the Constitution at this point. It has been only in the last few years (20ish) become popular & therefore a societal issue & not a constitutional issue.