Married Couples Must Have Equal Rights in Every State

Marriage is governed by the states, but the Constitution has the final say

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By Evan Wolfson

, Founder and President of Freedom to Marry

December 17, 2012

About Evan Wolfson:

Evan Wolfson is founder and president of Freedom to Marry.

The Supreme Court is considering two marriage cases in 2013: a challenge to the so-called Defense of Marriage Act, which creates a "gay exception" to the federal respect accorded lawful marriages, and to California's Proposition 8, which stripped away the freedom to marry from same sex couples. Should marriage "be left to the states"? What should we be doing to get America on the right side of history?

America is one country, not 50 separate kingdoms. Couples, their kids, and those dealing with them need to know from day to day and state to state whether they are married. That's why the practice has been that states issue marriage licenses, subject to the Constitution, and the federal government honors those marriages when it comes to the 1,138-plus marriage-related federal protections and responsibilities, including Social Security, family leave, health coverage, family immigration, and the ability to pool resources without adverse tax treatment.

[See a collection of political cartoons on gay marriage.]

In 10 recent rulings, judges appointed by Republican presidents as well as Democratic ones have struck down the Defense of Marriage Act's "gay exception," affirming that in America, we don't have second-class citizens and shouldn't have second-class marriages.

Fourteen times the Supreme Court has acknowledged the freedom to marry as a constitutional right. In its best-named case, Loving v. Virginia, the Court called marriage "one of the vital personal rights essential to the orderly pursuit of happiness." In another, Justice Thurgood Marshall wrote, "Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals."

[Read the U.S. News Debate: Should Gay Marriage be Legal Nationwide?]

Simply put, marriage is governed by the states, but the Constitution provides a floor below which states may not go. Just as states may not impose a same-race restriction, so they may not impose a different-sex restriction. But it is also true that—as with interracial marriage bans, which the Court avoided striking down until 1967—the Court need not reach that national question in order to uphold the appellate ruling that California had no good reason for stripping away marriage from one group of couples and thus violated the constitutional guarantee of equal protection.

So should marriage be left to the states? One answer is yes, subject to the Constitution. The other answer is in Freedom to Marry's "Roadmap to Victory" national strategy, which says that the best way of obtaining a favorable Supreme Court ruling is to continue winning more states and winning over more hearts and minds. The more the states end marriage discrimination, the sooner the Supreme Court will, too.