The Constitution Does Not Make Traditional Marriage Unconstitutional

Allowing interracial marriage has no bearing on the argument for same sex marriage

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By John C. Eastman

, Chairman of the Board of the National Organization for Marriage

March 4, 2013

About John C. Eastman:

John C. Eastman is the Henry Salvatori Professor of Law & Community Service at Chapman University School of Law, the founder of the Center for Constitutional Jurisprudence, and the chairman of the board of the National Organization for Marriage.

In 2008, the voters of California—more than 7 million of them—voted to restore the traditional definition of marriage in California after the state's Supreme Court had discovered a right in the state constitution for homosexual relationships to be treated as marriages. A state constitutional challenge contending that Proposition 8 was an unconstitutional amendment failed, so a federal constitutional challenge was brought, contending that Proposition 8 violates the federal Constitution's guarantees of Due Process and Equal Protection. Properly understood, neither clause supports a ruling that traditional marriage is unconstitutional.

The Due Process clause has been interpreted as protecting more than just "process," but also certain fundamental rights, including the right to marry. But the Supreme Court's recognition of marriage as a fundamental right has always been grounded on what makes marriage a unique relationship. In Loving v. Virginia (1967), the Court defined marriage as a "fundamental" right because it is one of the "'basic civil rights of man,' fundamental to our very existence and survival," a point which is only true because the institution is rooted in the biological complementarity of the sexes, the formal recognition of the unique union through which children are produced. Societies across the globe and throughout history have recognized that marriage is our best way to promote the ideal of children being raised by the two people responsible for creating them—their mother and father. The ban on interracial marriage that was at issue in that case was struck down because race had nothing to do with that fundamental purpose. The same cannot be said for gender.

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

That basic biological point should also defeat the Equal Protection challenge. Equal Protection requires that individuals who are similarly situated must be treated similarly. It should be obvious, but as long as procreation is an important part of why society lends its weight to the institution of marriage, same sex and opposite sex relationships are simply not similarly situated with respect to that important aspect of marriage. Laws that foster the one relationship because of its unique ability to further the public good serve legitimate, even compelling governmental interests, and should be upheld.