Evolving Institution of U.S. Legal Marriage
by Ginger Bucklin
© 2005, Ginger Bucklin
Marriage has proven to be an evolving institution. Throughout the centuries, marriage has gone through numerous changes. Here is a brief outline of some of those changes that have taken place in the United States.
Until after the civil war, many African-Americans were not permitted to legally marry. By 1948, inter-racial couples were not legal in most of the U.S., and could have resulted in imprisonment. It was not until 1967 that the U.S. Supreme Court ruled interracial marriage legal throughout America.
In 1933, married women were finally granted the right to citizenship, independent of their husbands. It was not until 1975 that married women were allowed to have credit in their own name.
In 1965, the U.S. Supreme Court overturned laws prohibiting married couples from using contraception.
In 1976, three years after Roe v. Wade ruled abortion to be legal nationwide, the U.S. Supreme Court gave married women the right to an abortion without the consent of their husbands. (Planned Parenthood of Central Missouri v. Danforth)
The Family Law Act of 1969, allowed spouses to dissolve their marriage on the grounds of “irreconcilable differences,” rather than be required to prove infidelity.
Marriage as a Basic Right
The U.S. Supreme Court has defined marriage as a basic, fundamental right. Marriage is part of an individual’s “pursuit of happiness,” one of the “inalienable rights” that is enumerated in the Declaration of Independence. The Declaration also states that to secure these rights, whenever the government becomes destructive of these ends, it is the right of the people to alter or abolish it.
The DoMA law, which allows the Federal government and states to refuse recognition of same-sex legal marriages, goes against everything upon which this country was founded. It discriminates against gender, by violating the 5th and 14th Amendments of our Constitution.
Denying same-sex couples the right to marry violates a liberty defined in the 5th amendment: that neither Congress, nor the state legislatures, may pass a law that conflict with the Bill of Rights.
“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”
The equal protection clause of the 14th amendment ensures equality in education, employment, housing, lodging, and government benefits. Restricting the marriage contract to opposite-sex couples denies same-sex couples more than 1,138 rights, benefits, and privileges. Further, the due process clause of the 14th Amendment bars the government from arbitrarily depriving anyone of life, liberty, or property.
- Justice Robert H. Jackson (1892-1954), Supreme Court Justice
“This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”
- Cleveland Board of Education v. LeFleur - US Supreme Court, 1974
“The Constitution does not specifically mention freedom to marry, but it is settled that the ‘liberty'’ protected by the Due Process Clause of the Fourteenth Amendment embraces more than those freedoms expressly enumerated in the Bill of Rights. And the decisions of this Court have made clear that freedom of personal choice in matters of marriage and family life is one of the liberties so protected.”
Recent court cases such as Zablocki v. Redhail (regarding so-called “deadbeat dads”) and Turner v. Safley (regarding prisoners) have upheld “morally suspect” citizens’ right to marry. Why would this fundamental right be denied to law-abiding citizens?
- Zablocki v. Redhail - U.S. Supreme Court, 1978
In the 2003 case Lawrence v. Texas, the US Supreme Court held that intimate consensual sexual conduct, was part of the liberty protected by substantive due process under the Fourteenth Amendment.
Proposed Constitutional Amendment
There has been only one Constitutional amendment to restrict liberties and rights. The 18th Amendment of 1919 — which attempted to stop alcohol consumption — was repealed in 1933 with the 21st Amendment. The “prohibition” Amendment was an abysmal failure because it created a new class of criminals out of otherwise law-biding citizens, as well as creating a booming business for organized crime.
The current president has proposed a Constitutional marriage amendment. If it passed, it would become the only Constitutional amendment to restrict, rather than expand, the civil rights of individuals in the United States.
Marriage v. Union
Some have suggested that, rather than legal marriage, domestic partner registration, or Civil Unions be offered. For more than 50 years, many states held to a "separate but equal" policy for race and gender issues. The courts have rightly found that this did not provide any sort of equality.
“The history of our nation has demonstrated that separate is seldom, if ever, equal.”
“The dissimilitude between the terms ‘civil marriage’ and ‘civil union’ is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status”
We need to apply the essential values of our Constitution. Majority rule cannot be the only root of a decision. The purpose of the court and government is to protect the rights of all people, including minorities.
- Goodridge v. Dept. of Public Health - Massachusetts Supreme Court, 2003
Governments that offer Full Legal Marriage
South Africa (2005)
New Zealand (2013)
New Zealand (2013)
(England, Wales, Scotland) (2013)
US States & Territories
New Hampshire (2009)
District of Columbia (2009)
New York (2011)
Rhode Island (2013)
New Jersey (2013)
New Mexico (2013)
Michigan (2014) - stayed pending legal challenge
Arkansas (2014) - stayed pending legal challenge
West Virginia (2014)
Kansas (2014) - stayed pending legal challenge
North Carolina (2014)
South Carolina (2014)
U.S. Supreme Court (June 26, 2015):
Ruling: All U.S. States must now
allow same-sex couples the
freedom of legal marriage.
Native American Tribes|
Coquille Tribe, Oregon (2009)
Mashantucket Pequot, Connecticut (2011)
Suquamish Tribe, Washington (2011)
Confederated Tribes of the Colville Reservation, Washington (2013)
Leech Lake Band of Ojibwe, Minnesota (2013)
Little Traverse Bay Bands of Odawa Indians, Michigan (2013)
Pokagon Band of Potawatomi Indians, Michigan (2013)
Santa Ysabel Tribe, California (2013)
Confederated Tribes of the Colville Nation, Washington (2013)
Cheyenne, Oklahoma (2013)
Arapaho, Oklahoma (2013)
Leech Lake Tribal Court, Minnesota (2013)
Puyallup Tribe, Washington (2914)
Wind River Indian Reservation, Wyoming (2014)
Keweenaw Bay Indian Community, Michigan, (2014)
Colville Confederated Tribes, Washington (2014)
Central Council of Tlingit, Alaska (2015)
Haida Indian Tribes, Alaska (2015)