A Common Sense Guide to Same Sex Marriage and the Constitution

April 27, 2015

This Tuesday, April 28, 2015, the Supreme Court of the United States will hear oral arguments in four consolidated cases, all of which deal with the issue of same-sex marriage. It promises to be a “landmark case,” whichever way it is decided. In all likelihood this will be the Roe v. Wade of the current generation.

In cases of such cultural and legal significance, it is important for Christians to understand the arguments that are being presented. While we may have a strong theological grasp of why marriage—biblically defined—consists of a lifelong monogamous union between one man and one woman, the legal arguments concerning the constitutionality of state marriage laws is a different issue. Yet I believe that Christians should endeavor to stay informed and active in civic engagement, especially in cases like these. Though not everyone can be a constitutional scholar, anyone willing to pay attention and think critically can understand the applicable laws and principles of this case. My aim is to communicate the legal argument in favor of states with same-sex marriage bans in a way that is understandable by the ordinary person with no legal training whatsoever.

First, we must understand what is the issue, legally, that the Court will decide. The constitutional issue is not whether same-sex marriage is good or bad. Nor is it whether the view of traditional marriage is the right view. There is no constitutional argument that heterosexual marriage should be the norm for the entire nation. The issue in this cases is whether the Constitution requires states to recognize same-sex marriages. Or, to put it the other way around, does the Constitution allow each state to define marriage for itself? A careful consideration of the Constitution and relevant cases reveals that yes, each state can define marriage for itself. Consequently, the Constitution does not require every state to recognize same-sex marriages. So let’s dive into the argument. The following Question Presented is from Petitioners’ (i.e., individuals seeking same-sex marriages) brief:

QUESTION PRESENTED: (1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

A legal analysis of this question generally has three parts:

Do states have the authority to define marriage? If so, are there any constitutional constraints?
Do the state marriage laws at issue violate the 14th Amendment’s Due Process clause?
Do the state marriage laws at issue violate the 14th Amendment’s Equal Protection clause?

If the answer to either questions two or three are yes, then the state laws are unconstitutional. But let’s start with question number one: Do states have the authority to define marriage? And if they do, what constitutional restraints apply to those definitions?

State Authority to Define Marriage

States traditionally have enjoyed the right to define and control the institution of marriage. Since our nation’s founding, states have overseen the civic institution of marriage, conferring benefits and establishing consequences for the breakup of marriages. The US Constitution, however, does not set a national standard for marriage that all states must follow. Simply put, the Constitution is silent on the issue of marriage; therefore, the power to regulate and define marriage is left to the states as part of their general sovereign authority.

Several Supreme Court cases have upheld and reaffirmed the state’s integral role in defining and regulating marriage. For more extensive reading on the history of the state’s involvement in marriage, the State of Utah’s Petition for Certiorari in a similar marriage case is worth a read.

More recently, however, the Supreme Court addressed this very issue in the “DOMA” case, often called the Windsor decision. This case struck down as unconstitutional the federal Defense of Marriage Act, in which the federal government refused to recognize or confer benefits to same-sex married couples. In reaching its decision to invalidate the law, the Supreme Court relied on the bedrock premise that states controlled marriage, not the federal government. In other words, the Court held that the federal government could not refuse to recognize state-sanctioned same-sex marriages precisely because the power to define and police marriage lies with each state.

Although this decision was lauded as a victory for LGBT rights, the underlying principle of the case cuts against Petitioners here. Either Windsor was incorrectly decided (and thus requires reversal), or the states can define marriage for themselves, and Petitioners’ argument fails. Simply put, our nation has a longstanding history and tradition of conferring the marriage power to states, and a decision contrary to that would fly in the face of a long list of settled legal precedent.

Even though states have the authority to define marriage, those definitions are subject to constitutional constraints that apply to all other state laws. In other words, state marriage laws must follow the constitutional protections guaranteed by the 14th Amendment (which makes most federal constitutional rights applicable to the states). This takes us to question number two: do the state laws in this case violate the 14th Amendment’s Due Process clause?

Fundamental Rights Analysis

The 14th Amendment to the Constitution generally prohibits the government from infringing upon a person’s life, liberty, or property without due process of law. Over time (and through much debate, but not a topic for this article), the Court has understood this provision of the Constitution to protect a person’s fundamental liberties from being infringed upon by the states. It is a “substantive rights” guarantee. The Constitution, however, does not specify what fundamental liberties, or “rights,” a person has. So, the Court looks to our nation’s history and tradition to determine if there is a fundamental right at stake. If there is a fundamental right at issue, then the law must be narrowly tailored to further a compelling governmental interest, using the least restrictive means available. This is called the “strict scrutiny” test, and it is a high burden to overcome.

The first step in fundamental rights analysis is to determine what is the “right” being addressed. Then, once the right is named specifically, the Court will determine if that right is “fundamental,” i.e., a constitutionally protected liberty interest. A right is fundamental in American law if it is “so deeply rooted” in our nation’s history and tradition as to be implicit to the concept of ordered liberty. (Unfortunately, the existence or non-existence of these rights depends upon the makeup of the Supreme Court.)

If, however, the identified right is not a fundamental right, then the Court applies the “rational basis” test to the law. Under rational basis review, the law must simply bear a rational basis to furthering a legitimate government interest. It is a fairly low standard of review—most laws withstand this test.

Let’s consider the fundamental rights analysis with respect to the current marriage cases before the Court. In the Petitioners’ written brief, they describe the right at issue as “the right to marry the one adult of their choice,” regardless of gender. To be sure, the wording is crafted carefully and intentionally. According to Petitioners, though, this right—as stated—is fundamental to American liberty. But let’s consider this assertion in the light of our nation’s history and tradition.

The 14th Amendment, on which the Petitioners rely, was adopted in 1868. At that time, no state recognized same-sex marriages. In fact, no sovereign nation in the entire world allowed same-sex couples to marry until the year 2000. In America, the first state to allow same-sex marriage (Massachusetts) did not do so until 2004—a mere decade ago. Therefore, it is a far stretch of the imagination to assert that the right of persons to marry the one adult of their choice—independent of gender—is “so deeply rooted in our nation’s history and tradition” as to be implicit to the concept of ordered liberty. Ordered liberty has flourished in this country for nearly 250 years without same-sex marriage. If anything, one could say that sexual complimentarity in marriage is deeply rooted in our nation’s history and tradition, not same-sex marriage. To say that it is a fundamental right does not line up with what, by definition, constitutes a fundamental right. The Supreme Court has used this line of reasoning as recently as the Windsor decision.

Moreover, the Petitioners did not provide any limiting principle to this fundamental right to marry other than that it be the “one” person that another person chooses to marry. But this ignores other longstanding prohibitions against marriage choice that operate as legitimate (and unquestioned) constraints on marriage options. For example, most—if not all—states have some sort of law prohibiting marriage between, say, brother and sister. These “consanguinity” laws remain unchallenged, yet they clearly operate against the Petitioners’ definition of the fundamental right to marry. There are other examples, but the point is that the freedom to marry whomever one wants is not deeply rooted in our nation’s history and tradition. Same-sex marriage, therefore, is not a fundamental right guaranteed by the Constitution.

So, if same-sex marriage is not a fundamental right, the Court should apply the rational basis test, where the law must bear some rational basis related to furthering a legitimate government interest. But even under this test, the Petitioners argue that same-sex marriage bans bear no rational relationship to a legitimate government interest. Instead, they argue that bans on same-sex marriage are based solely on an arbitrary animus towards same-sex sexual relationships and homosexual individuals. A closer look at what marriage is, and its relationship to an ordered civil society, however, reveals that this claim is false. Even more, an honest look at the historical record reveals that traditional definitions of marriage are not based on an animus towards gays and lesbians. Indeed, throughout history, societies that were notably tolerant of homosexual behavior still defined marriage as between one man and one woman. For an extended discussion on this topic, I recommend Ryan T. Anderson’s lecture at Franciscan University on the uniqueness of man-woman marriage and its role in society.

Simply put, the government has a legitimate interest in the success of the family as the foundation of a civil society. Many states, relying on voluminous social science data, have concluded that a married mother and father under one roof is the most stable and healthy environment in which to raise children. The unique advantages that a sexually complimentary marital relationship provides for children is well-documented and extensive. Petitioners, though, largely ignore this data. So, in order to promote a flourishing family structure and society, several states have defined the marriage relationship to be the heterosexually monogamous relationship between one man and one woman. True, not all couples have children, and many couples who desire children cannot have them. But the fact remains that man-woman marriage is the preferred family situation for raising any children that may result from a marital union. Excluding the requirement of sexual complimentarity in marriage ignores this biological and teleological reality. Governments, therefore, have endeavored to create a structure in which families and children can thrive. Surely the government has at least a legitimate interest in providing a culture in which families can flourish and children can thrive.

In order to pass muster, then, the state’s law must bear a rational relationship to this interest. Clearly, defining marriage as between a man and a woman is rationally related to the government’s objective of promoting a stable and productive family atmosphere. This is a low standard, but the positive relationship between stable family environments and a stable and productive society is well documented—and rational. Petitioners, however, must go so far as to say that this relationship, and the belief that children deserve the chance to be raised by both mother and father, is completely irrational. Completely irrational! This is a bold claim. Taken to its logical end, Petitioners must affirm that millenia of experience and social science are completely irrational and meaningless.

The truth is that state laws defining marriage as between a man and a woman do have a rational basis in furthering a legitimate government interest. The state laws, therefore, withstand the fundamental rights analysis. On to question three: do the states’ laws violate the Equal Protection clause?

Equal Protection Analysis

The next part of the analysis focuses on the Equal Protection clause of the 14th Amendment, which says that no state shall deny any person “equal protection of the laws.” Historically, this has been understood to prohibit discrimination on the basis of race. All laws should apply equally to all people, regardless of race. Under modern Equal Protection analysis, however, there is a two-part test.

The first element of the test seeks to determine if the law disfavors, or treats differently, a protected class of persons. “Protected class” status has traditionally been reserved for classifications based on race, and to some extent, sex. If a law treats members of a protected class differently, then the Court will apply the “strict scrutiny” test mentioned above. If there is a “quasi-protected class,” such as a classification based on sex (or sexual orientation, as argued by Petitioners), then the court will use an analysis called “intermediate scrutiny.” In order to meet the heightened scrutiny standard, a law must be “closely related” to an “important government interest.” And if there is no protected class, the Court will apply the rational basis test.

Petitioners in this case mount an attack on marriage laws on two separate fronts. First, they argue that same-sex marriage bans discriminate on the basis of sexual orientation, and that sexual orientation discrimination should trigger the “heightened scrutiny” standard of review. Second, they argue that, even if heightened scrutiny does not apply, the states’ same-sex marriage bans do not pass even the rational basis test.

Because we have already discussed the rational basis analysis, let’s address the claim that same-sex marriage bans discriminate against gays and lesbians on the basis of their sexual orientation. Petitioners’ argument on this claim absolutely depends upon the premise that same-sex marriage bans discriminate against certain people on the basis of their sexual orientation. A closer look at the issue, however, reveals that this is simply false. (In my opinion, this is the most important part of the analysis, and a point often overlooked).

The truth is that defining marriage to include only a man and a woman has nothing to do with sexual orientation. It has everything to do with sexual complimentarity. A ban on same-sex marriage does not, as Petitioners argue, foreclose the option of marriage for homosexual individuals. Many gay and lesbian men and women have entered into fulfilling, loving, and successful marriages. In fact, a group of same-sex attracted men filed a “friend of the Court” brief to show (and admirably so) that LGBT persons can enter into faithful and meaningful man-woman marriages. If Petitioners are correct that same-sex marriage bans foreclose the entire LGBT population from fulfilling marriages, then they must also affirm that the myriad man-woman marriages entered into by homosexual men and women are shams and virtually meaningless.

This point bears repeating (because Petitioners have done an excellent job of framing the issue): same-sex marriage bans do not discriminate on the basis of sexual orientation. Same sex marriage bans do not prevent gays and lesbians from marrying; gay and lesbian individuals are as equally free to choose to enter a marriage relationship as heterosexual individuals. The claim that same-sex marriage bans discriminate against gays and lesbians is simply false. The basis for “discrimination” in this case is sexual complimentarity, not sexual orientation. And sexual complimentarity is not a protected class under the Constitution.

Because the classification at issue does not have “protected class” status, heightened scrutiny should not apply, and the Court should engage in the rational basis test outlined above. Given the leniency of rational basis review, the state laws should withstand the proper Equal Protection analysis.


Same-sex marriage, simply put, is not a fundamental right protected by the Constitution. Nor do same-sex marriage bans unfairly discriminate against gays and lesbians on account of their sexual orientation. Appeals to constitutional equality alone do not tell us which version of marriage should apply equally to all. And because the Constitution is silent on the definition of marriage, the ability to define its parameters should be left to each state.

Resources for Further Study:

Preview on same-sex marriage — Part II, The states’ views


No Constitutional Right to Same-Sex Marriage, Circuit Court Rules

Kyle Bryant

Mr. Kyle Bryant serves as the Campus Director for TCS Heights. Although raised in the public school system, Kyle is passionate about seeing a revival of classical education in our communities and churches. After graduating from Kingwood High School, he attended Texas A&M University, where he graduated with a B.S. … Read More

Article 12: The Future of AI

We affirm that AI will continue to be developed in ways that we cannot currently imagine or understand, including AI that will far surpass many human abilities. God alone has the power to create life, and no future advancements in AI will usurp Him as the Creator of life. The church has a unique role in proclaiming human dignity for all and calling for the humane use of AI in all aspects of society.

We deny that AI will make us more or less human, or that AI will ever obtain a coequal level of worth, dignity, or value to image-bearers. Future advancements in AI will not ultimately fulfill our longings for a perfect world. While we are not able to comprehend or know the future, we do not fear what is to come because we know that God is omniscient and that nothing we create will be able to thwart His redemptive plan for creation or to supplant humanity as His image-bearers.

Genesis 1; Isaiah 42:8; Romans 1:20-21; 5:2; Ephesians 1:4-6; 2 Timothy 1:7-9; Revelation 5:9-10

Article 11: Public Policy

We affirm that the fundamental purposes of government are to protect human beings from harm, punish those who do evil, uphold civil liberties, and to commend those who do good. The public has a role in shaping and crafting policies concerning the use of AI in society, and these decisions should not be left to those who develop these technologies or to governments to set norms.

We deny that AI should be used by governments, corporations, or any entity to infringe upon God-given human rights. AI, even in a highly advanced state, should never be delegated the governing authority that has been granted by an all-sovereign God to human beings alone. 

Romans 13:1-7; Acts 10:35; 1 Peter 2:13-14

Article 10: War

We affirm that the use of AI in warfare should be governed by love of neighbor and the principles of just war. The use of AI may mitigate the loss of human life, provide greater protection of non-combatants, and inform better policymaking. Any lethal action conducted or substantially enabled by AI must employ 5 human oversight or review. All defense-related AI applications, such as underlying data and decision-making processes, must be subject to continual review by legitimate authorities. When these systems are deployed, human agents bear full moral responsibility for any actions taken by the system.

We deny that human agency or moral culpability in war can be delegated to AI. No nation or group has the right to use AI to carry out genocide, terrorism, torture, or other war crimes.

Genesis 4:10; Isaiah 1:16-17; Psalm 37:28; Matthew 5:44; 22:37-39; Romans 13:4

Article 9: Security

We affirm that AI has legitimate applications in policing, intelligence, surveillance, investigation, and other uses supporting the government’s responsibility to respect human rights, to protect and preserve human life, and to pursue justice in a flourishing society.

We deny that AI should be employed for safety and security applications in ways that seek to dehumanize, depersonalize, or harm our fellow human beings. We condemn the use of AI to suppress free expression or other basic human rights granted by God to all human beings.

Romans 13:1-7; 1 Peter 2:13-14

Article 8: Data & Privacy

We affirm that privacy and personal property are intertwined individual rights and choices that should not be violated by governments, corporations, nation-states, and other groups, even in the pursuit of the common good. While God knows all things, it is neither wise nor obligatory to have every detail of one’s life open to society.

We deny the manipulative and coercive uses of data and AI in ways that are inconsistent with the love of God and love of neighbor. Data collection practices should conform to ethical guidelines that uphold the dignity of all people. We further deny that consent, even informed consent, although requisite, is the only necessary ethical standard for the collection, manipulation, or exploitation of personal data—individually or in the aggregate. AI should not be employed in ways that distort truth through the use of generative applications. Data should not be mishandled, misused, or abused for sinful purposes to reinforce bias, strengthen the powerful, or demean the weak.

Exodus 20:15, Psalm 147:5; Isaiah 40:13-14; Matthew 10:16 Galatians 6:2; Hebrews 4:12-13; 1 John 1:7 

Article 7: Work

We affirm that work is part of God’s plan for human beings participating in the cultivation and stewardship of creation. The divine pattern is one of labor and rest in healthy proportion to each other. Our view of work should not be confined to commercial activity; it must also include the many ways that human beings serve each other through their efforts. AI can be used in ways that aid our work or allow us to make fuller use of our gifts. The church has a Spirit-empowered responsibility to help care for those who lose jobs and to encourage individuals, communities, employers, and governments to find ways to invest in the development of human beings and continue making vocational contributions to our lives together.

We deny that human worth and dignity is reducible to an individual’s economic contributions to society alone. Humanity should not use AI and other technological innovations as a reason to move toward lives of pure leisure even if greater social wealth creates such possibilities.

Genesis 1:27; 2:5; 2:15; Isaiah 65:21-24; Romans 12:6-8; Ephesians 4:11-16

Article 6: Sexuality

We affirm the goodness of God’s design for human sexuality which prescribes the sexual union to be an exclusive relationship between a man and a woman in the lifelong covenant of marriage.

We deny that the pursuit of sexual pleasure is a justification for the development or use of AI, and we condemn the objectification of humans that results from employing AI for sexual purposes. AI should not intrude upon or substitute for the biblical expression of sexuality between a husband and wife according to God’s design for human marriage.

Genesis 1:26-29; 2:18-25; Matthew 5:27-30; 1 Thess 4:3-4

Article 5: Bias

We affirm that, as a tool created by humans, AI will be inherently subject to bias and that these biases must be accounted for, minimized, or removed through continual human oversight and discretion. AI should be designed and used in such ways that treat all human beings as having equal worth and dignity. AI should be utilized as a tool to identify and eliminate bias inherent in human decision-making.

We deny that AI should be designed or used in ways that violate the fundamental principle of human dignity for all people. Neither should AI be used in ways that reinforce or further any ideology or agenda, seeking to subjugate human autonomy under the power of the state.

Micah 6:8; John 13:34; Galatians 3:28-29; 5:13-14; Philippians 2:3-4; Romans 12:10

Article 4: Medicine

We affirm that AI-related advances in medical technologies are expressions of God’s common grace through and for people created in His image and that these advances will increase our capacity to provide enhanced medical diagnostics and therapeutic interventions as we seek to care for all people. These advances should be guided by basic principles of medical ethics, including beneficence, non-maleficence, autonomy, and justice, which are all consistent with the biblical principle of loving our neighbor.

We deny that death and disease—effects of the Fall—can ultimately be eradicated apart from Jesus Christ. Utilitarian applications regarding healthcare distribution should not override the dignity of human life. Fur- 3 thermore, we reject the materialist and consequentialist worldview that understands medical applications of AI as a means of improving, changing, or completing human beings.

Matthew 5:45; John 11:25-26; 1 Corinthians 15:55-57; Galatians 6:2; Philippians 2:4

Article 3: Relationship of AI & Humanity

We affirm the use of AI to inform and aid human reasoning and moral decision-making because it is a tool that excels at processing data and making determinations, which often mimics or exceeds human ability. While AI excels in data-based computation, technology is incapable of possessing the capacity for moral agency or responsibility.

We deny that humans can or should cede our moral accountability or responsibilities to any form of AI that will ever be created. Only humanity will be judged by God on the basis of our actions and that of the tools we create. While technology can be created with a moral use in view, it is not a moral agent. Humans alone bear the responsibility for moral decision making.

Romans 2:6-8; Galatians 5:19-21; 2 Peter 1:5-8; 1 John 2:1

Article 2: AI as Technology

We affirm that the development of AI is a demonstration of the unique creative abilities of human beings. When AI is employed in accordance with God’s moral will, it is an example of man’s obedience to the divine command to steward creation and to honor Him. We believe in innovation for the glory of God, the sake of human flourishing, and the love of neighbor. While we acknowledge the reality of the Fall and its consequences on human nature and human innovation, technology can be used in society to uphold human dignity. As a part of our God-given creative nature, human beings should develop and harness technology in ways that lead to greater flourishing and the alleviation of human suffering.

We deny that the use of AI is morally neutral. It is not worthy of man’s hope, worship, or love. Since the Lord Jesus alone can atone for sin and reconcile humanity to its Creator, technology such as AI cannot fulfill humanity’s ultimate needs. We further deny the goodness and benefit of any application of AI that devalues or degrades the dignity and worth of another human being. 

Genesis 2:25; Exodus 20:3; 31:1-11; Proverbs 16:4; Matthew 22:37-40; Romans 3:23

Article 1: Image of God

We affirm that God created each human being in His image with intrinsic and equal worth, dignity, and moral agency, distinct from all creation, and that humanity’s creativity is intended to reflect God’s creative pattern.

We deny that any part of creation, including any form of technology, should ever be used to usurp or subvert the dominion and stewardship which has been entrusted solely to humanity by God; nor should technology be assigned a level of human identity, worth, dignity, or moral agency.

Genesis 1:26-28; 5:1-2; Isaiah 43:6-7; Jeremiah 1:5; John 13:34; Colossians 1:16; 3:10; Ephesians 4:24