of happiness by free men.” Pursuant to the Court’s ruling, the Virginia anti-miscegenation statutes were invalidated. The Supreme Court further declared that marriage is a fundamental right and that states can only regulate it insofar as such regulations do not infringe on due process and equal protection rights. Since marriage was never before a “fundamental right” delineated in the text of our Constitution, the Supreme Court essentially “legislated” from the bench by declaring it to be so. In this sense, the Court created a right that was not previously recognized. Nonetheless, the decision in Loving v. Virginia was unanimous and the case has not been overturned. Hence, the precedent is binding. Today the critical question is: do sexual orientation based restrictions infringe on 14th Amendment constitutional rights? In 1996, President Bill Clinton signed into law the Defense of Marriage Act (DOMA), which defined marriage as a legal union between one man and one woman. Under DOMA, no state is required to recognize a same-sex relationship, even if the relationship is valid in another state. Since DOMA, many states have passed similar legislation, while others have handled the matter differently. A handful of states have created civil unions, which are parallel systems whereby same-sex couples are afforded virtually all the benefits and protections that heterosexual married couples possess. Currently there are 6 states that allow same-sex marriage: Massachusetts, Connecticut, Vermont, Iowa, New Hampshire and New York, in addition to the District of Columbia. More than 40 states have banned it by defining marriage as being between one man and one woman. Based on these facts, it appears that most Americans do not wish to extend the definition of marriage to include same-sex couples, though many support civil unions. The case that will likely be heard by the United States Supreme Court is Perry v. Schwarzenegger (aka Perry v Brown), rising up from the 9th Circuit Court of Appeals.
In May 2008, the California Supreme Court ruled that same-sex couples had the right to marry. Shortly thereafter, in November 2008, CA voters amended the state Constitution to define marriage as being between one man and one woman. The measure was called Proposition 8 and it effectively banned gay marriage in the state of CA. Subsequently, a federal lawsuit was filed, challenging the constitutionality of Proposition 8. In Aug 2010, District Court Judge Vaughn Walker ruled that Proposition 8 violated the Due Process and Equal Protection Clauses of the 14th Amendment of the United States Constitution. In his decision, Judge Walker cited Loving v. Virginia (1967) and drew parallels between racial discrimination and sexual orientation discrimination. He concluded that CA had no “legitimate reason” or “rational basis” in denying marriage licenses to homosexuals. His ruling is currently pending appeal. If the U.S. Supreme Court hears this case, it will be a landmark decision in the area of non-traditional marriage. When analyzing any Constitutional issue, the strongest arguments are based in Constitutional text and Supreme Court precedent, as opposed to partisanship or subjective morality. Loving v. Virginia (1967), which we outlined above, provides the strongest precedent in support of non-traditional marriage. Today, the central question is whether restricting marriage on the basis of sexual orientation similarly violates the 14th Amendment? This is the key inquiry that will be addressed by the U. S. Supreme Court, should they hear the appeal in Perry v. Schwarzenegger. There are multiple possible outcomes, depending on how the Justices view current legislative restrictions on marriage. The Supreme Court need not revisit the issue of whether marriage is a fundamental right because neither side has disputed this point. Nonetheless, the Court could find that same-sex couples are seeking to create a new right, separate and apart from the www.seemagazine.org | pg 12