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The Supreme Court’s Marriage Precedents


By Matt Baume

At AFER, we often talk about how the United States Supreme Court has ruled fourteen times that marriage is a fundamental right.

But what are those fourteen cases, going all the way back to the 1880s? Let’s take a closer look at exactly what they were about, and how they bolster the case to overturn Prop 8.

At the American Foundation for Equal Rights, I’m Matt Baume, and welcome to a special episode of Marriage News Watch.

The Supreme Court’s ruled on marriage over a dozen times. And those cases touched on a wide range of issues — from parenting to divorce to reproduction and housing.

But if they hear our case, it could be the first time that the court rules on the freedom to marry for gay and lesbian Americans.

Let’s start back in 1888, with Maynard v. Hill. That case clarified the rules for divorce, and the court wrote that marriage is “the most important relation in life … without which there would be neither civilization nor progress.”

Those words are 125 years old, but they illustrate a crucial point. Marriage isn’t just some run-of-the-mill interest. It’s a fundamental freedom. It’s special. And the government can’t restrict it unless there’s a really good reason. And that really good reason, as we saw in court, simply doesn’t exist.

The next major marriage case was Meyer v. Nebraska in 1923. That case involved parental rights, and the court wrote that the right “to marry, establish a home and bring up children” is a central part of the Due Process clause. In other words, it’s protected by the Constitution.

That was followed by four cases involving reproductive rights: Skinner v. Oklahoma, 1942; Griswold v. Connecticut, 1965; Carey v. Population Services International in 1977; and later Planned Parenthood v. Casey in 1992. Those cases prompted the court to write that marriage is “one of the basic civil rights of man,” and involves “a right of privacy older than the Bill of Rights.”

The court added that “among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage.”

Those four cases spanned fifty years, during which the court also heard Loving v. Virginia. That’s the big one that in 1967 overturned racist anti-miscegenation laws. The court wrote in Loving, “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”

And the plaintiff in that case, Mildred Loving, wrote, “I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. … I support the freedom to marry for all. That’s what Loving [v. Virginia] and loving [each other] are all about.”

Following the Loving case were seven separate cases that invoked the Due Process clause in recognizing the importance of marriage.

First was Boddie v. Connecticut in 1971, involving divorce law. The court wrote, “marriage involves interests of basic importance to our society” and is “a fundamental human relationship.”

That was followed by Cleveland Board of Education v. LaFleur, which overturned discriminatory maternity laws in 1974. The court wrote, “personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”

Then came Moore v. City of East Cleveland in 1977, which overturned a law that limited the definition of family to only nuclear families.

A year later, the court heard Zablocki v. Redhail, a challenge to laws that restricted re-marriage. The court ruling was consistent with past decisions: “the right to marry is one of fundamental importance for all individuals.”

We’re in the home stretch now with Turner v. Safely, 1987. That case unanimously overturned a law that prevented prisoners from marrying without permission from the warden. Again the court wrote that “the decision to marry is a fundamental right.”

And in a 1996 case involving parenting known as MLB v. SLJ, the court wrote “choices about marriage, family life, and the upbringing of children are among associational rights this court has ranked as ‘of basic importance in our society,’ rights sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.”

And now we get to Lawrence v. Texas in 2003, a landmark decision that overturned some — but not all — discriminatory anti-gay laws. In that decision, the court wrote, “our laws and tradition afford constitutional protection to personal decisions relating to marriage … Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”

So, why does all this matter?

Because all of these cases track closely with the case against Proposition 8. The rulings against Prop 8 closely echo that long history of rulings by the Supreme Court.

When the District Court ruled in our favor in 2010, it was on the basis of due process and equal protection. In fact, the court cited Loving v. Virginia and Griswold v. Connecticut, writing, “the right to marry … has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household.”

And when the Ninth Circuit upheld that ruling, the court wrote that Prop 8 violates the Equal Protection clause of the Constitution by excluding gay and lesbian couples from marriage. The court wrote “Proposition 8 singles out same-sex couples for unequal treatment by taking away from them alone the right to marry,” which is a “distinct constitutional violation” in that it subjected a minority group to “the deprivation of an existing right without a legitimate reason.”

The rulings in our case are consistent with 125 years of rulings by the Supreme Court of the United States. That’s why we’re confident we’ll win.

But we’ll still need your help to do it. We have the winning arguments, but bringing them to the Supreme Court requires a lot of resources. Visit to find out how you can help add this case to the long list of cases that expanded the freedom to marry.


  • 1. Kevin  |  November 27, 2012 at 4:06 pm

    Let's be real here. If the court decides to take Prop 8 that is NOT good and I can assure you they will not enable gay marriage is California. Face the music. This whole mumbo jumbo about them taking Prop 8 case and then ruling in Prop 8 favor or even a nationwide marriage vote is highly unrealistic, and over ambitious. Not with THIS supreme court. What every single pro gay ally should be rooting for is SCOTUS rejecting to take the Prop 8 case and instead taking up DOMA. Point blank.

  • 2. SHOES THROWER  |  November 27, 2012 at 7:49 pm

    What is missing is from that list is the 1890 case of Davis v. Beason.

  • 3. Johyn  |  November 28, 2012 at 7:11 am

    @Kevin, do you have an exact number of states in mind that support SSM in order to support your theory? What threshold of states would convince you? Otherwise, I think Loving, v. Virginia proves you wrong, same argument, different decade. Now, if Arizona is not denied vert and they also take Prop 8 and DOMA, then there might remotely be some credibility to your hypothesis.

  • 4. Mike in Baltimore  |  November 28, 2012 at 10:19 pm


    What is missing from 'Davis v. Beason' is A person marrying A person, the context of each of the other cases cited. 'Davis v Beason' is a case of whether the courts can take a case of A person 'marrying' SEVERAL persons, even if the 'marriages' are done within a religious context.

    A person marrying A person versus A person 'marrying' SEVERAL persons.

    Got it?

    Now quit playing lawyer and get back to your 'can I supersize that for you?' job, please.

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