Is Marriage a Civil Right?

Do All Americans Have a Right to Marry?

Abe Lincoln Holding Marriage Signs
Photo: Justin Sullivan / Getty Images.

Is marriage a civil right? Recognized federal civil rights law in the U.S. is grounded in the U.S. Constitution as interpreted by the Supreme Court. Marriage has long been established as a civil right by this standard. 

What the Constitution Says 

The operative constitutional text is Section 1 of the Fourteenth Amendment, which was ratified in 1868. The relevant passage reads as follows:

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.

The U.S. Supreme Court first applied this standard to marriage in Loving v. Virginia in 1967 when it struck down a Virginia law banning interracial marriage. Chief Justice Earl Warren wrote for the majority:

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 ...

To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

 

The Fourteenth Amendment and Same-Sex Marriages 

The U.S. Treasury and the Internal Revenue Service announced in 2013 that all legal same-sex married couples would be entitled to and subject to the same tax rules applied to heterosexual couples. The U.S. Supreme Court followed with a ruling in 2015 that all states must recognize same-sex unions and none may prohibit same-sex couples from marrying.

This effectively made same-sex marriage a right under federal law. The court did not overturn the foundational premise that marriage is a civil right. Lower courts, even when relying on disparate state-level constitutional language, have acknowledged the right to marry.

Legal arguments for excepting same-sex marriage from the definition of marriage as a civil right have rested instead on the argument that states have a compelling interest in restricting same-sex marriage that justifies limiting that right – an argument that was also once used to justify restrictions on interracial marriage. It has also been argued that laws permitting civil unions provide a substantially equivalent standard to marriage that satisfies equal protection standards.

Nonetheless, some states have resisted the federal edict. Alabama famously dug in its heels and a federal judge had to strike down Florida's same-sex marriage prohibition in 2016. Texas has proposed a series of religious liberty bills, including its Pastor Protection Act, in an effort to skirt around federal law, effectively allowing individuals to refuse to marry same-sex couples if doing so flies in the face of the principles of their faith.