Capitol Building

Love wins on the hill this week as the U.S. Supreme Court has recently ruled that same-sex couples have the right to marry everywhere in the country. What is not as clear to many of the people that celebrate the result, though, is how the court determined that the right to marry a partner of choice is contained in the constitution, which is over two hundred years old and doesn’t say a thing about marriage of any sort—particularly a person’s right to marry a partner of the same sex.

Not From the Bill of Rights

Most people are familiar with the Bill of Rights. The first ten amendments to the U.S. Constitution were drafted and added basically at the same time that the original document was adopted as the founding principles of the country. They explain in a brief but clear fashion that the government is to respect and recognize the basic civil rights of all citizens of the country, some of which include:

• Freedom of speech (First Amendment)
• Freedom to exercise religion (First Amendment)
• Freedom to publish opinions (First Amendment)
• Right to bear arms (Second Amendment)
• Right to be free of unwarranted government search (Fourth Amendment)
• Right to a speedy trial with a jury for criminal charges (Sixth Amendment)
• Rights not specified, which are saved for the people (Ninth and Tenth Amendments)

The Supreme Court, however, did not turn to any of the rights that are spelled out in the first ten amendments for its recent ruling. Some wonder where in the constitution, then, did the court find the authority to tell all states that the freedom to marry extends to all people, including lesbian, gay, bisexual, transgender and queer (LGBTQ) individuals who wish to marry a person of the same gender.

Fourteenth Amendment

The constitutional system was designed to allow more amendments to the document after it was originally written, and of course amendments have been adopted over the years. After the horrors of the Civil War, in which Southern states that had permitted legal slavery did not respect the federal government’s authority to order them to refrain from human bondage, the nation was faced with the inescapable truth that the original constitution needed clear amendments to clarify the rights accorded to all people.

The constitution had been written with full knowledge and acceptance of the institution of human slavery (as well as condoning and accepting a great deal of undeniably wrong behavior toward the natives of the land). The Thirteenth and Fourteenth Amendments clarified matters with regard to some fundamental flaws in the assumptions and understandings in the original constitution. No more could the government condone one class of people to own another (except, as the document still allows, in case of punishment for crime, when human servitude in bondage is still legally permitted under the constitution). Rights were added to the originally specified Bill of Rights.

Due Process and Equal Protection

The rights promised and guaranteed in the Fourteenth Amendment are more nuanced and complicated than the clear and relatively simple statements of rights listed in the first ten amendments. The amendment directs that, “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Dignity in the Eyes of the Law

The court concludes its opinion with the recognition that “it would misunderstand these men and women to say that they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The constitution grants them that right.”