Civil Liberties: Is Marriage a Right?

Do all Americans have a right to marry?

Abe Lincoln holding marriage signs
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Is marriage a civil right? Federal civil rights law in the U.S. stems from the Supreme Court's interpretation of the Constitution. Using this standard, marriage has long been established as a fundamental right of all Americans.

What the Constitution Says 

Marriage equality activists argue that the ability for all adults in the U.S. to wed is absolutely a civil right. The operative constitutional text is Section 1 of the Fourteenth Amendment, which was ratified in 1868. This excerpt states:

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 this with a 2015 ruling 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 excluding same-sex unions from the definition of marriage have asserted that states have a compelling interest in restricting such unions. That interest, in turn, justifies limiting the right to marriage. This argument was once used to justify restrictions on interracial marriage as well. The case has also been made that laws permitting civil unions provide a substantially equivalent standard to marriage that satisfies equal protection standards.

In spite of this history, some states have resisted the federal edict concerning marriage equality. 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 federal law. This would effectively allow individuals to refuse to marry same-sex couples if doing so flies in the face of their faith.