Goin' to the Chapel and We're Gonna Get Married

He is now to be among you 
at the calling of your hearts

Rest assured this troubadour 
is acting on His part.

The union of your spirits, here,
 has caused Him to remain

For whenever two or more of you 
are gathered in His name

There is love, there is love.

~The Wedding Song (There Is Love)

Peter, Paul & Mary

Nearly a month ago, the U.S. Supreme Court ruled that same-sex couples have the right to marry in the United States. A majority of five justices found that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. 

The Right to Marry

This is not the first time that the Court has found that a specific group of people had a right under the Fourteenth Amendment to marry.

Loving v. Virginia (1967): In 1958, a couple of high school sweethearts left their home state and traveled to Washington, D.C., so that they could legally marry. After they returned to their home in Virginia, both were arrested for "cohabiting as man and wife, against the peace and dignity of the Commonwealth." Subsequently, Richard and Mildred Loving pleaded guilty to violating Virginia's law prohibiting interracial marriage. Their one-year jail sentence was suspended for 25 years on the condition that they left the state, which they did.

Forty-eight years before the U.S. Supreme Court found that same-sex couples have a Constitutional right to marry, the Court (in 1967) legalized interracial marriage in a unanimous decision. At the time, the subject of interracial marriage was nearly as contentious as same-sex marriage is today. In fact, 17 southern states had laws prohibiting interracial marriage.

Where are they now? Mildred Loving Obituary

Baker v. Nelson (1972): In 1970, two University of Minnesota gay student activists, Richard Baker and James Michael McConnell, applied for a marriage license in Minneapolis. County Court Clerk Richard Nelson refused to issue a marriage license to a same-sex couple. 

In its decision upholding the county's refusal to issue a marriage license to the couple, the Minnesota Supreme Court focused on the function of marriage to procreate and rear children within a family. They distinguished the Loving case saying, "But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex."

When the couple appealed to the U.S. Supreme Court, it, in effect, upheld the Minnesota court when it issued a one-sentence opinion dismissing the case  question"for want of a substantial federal."

Where are they now? Richard Baker and James McConnell

Zablocki v. Redhail (1978): A Wisconsin statute required non-custodial parents who wanted to marry to get a court order to receive a marriage license, and the marriage license would not be issued if the non-custodial parent owed child support. The U.S. Supreme Court found that the statute violated the Fourteenth Amendment's equal protection clause. 

Turner v. Safley (1987): A Missouri prison regulation that prohibited inmates from marrying without the permission of the warden was unconstitutional. Once again, the Court said that the right to marry is a fundamental right protected by the due process clause.

Same-Sex Marriage: Windsor and Obergefell

United States v. Windsor (2013): In 1996, the Defense of Marriage Act (DOMA) became law. DOMA defined "spouse" and its related terms to signify a heterosexual couple in a recognized marriage. Thus, DOMA meant that the federal government would not recognize a same-sex marriage. 

In Windsor, the Court found DOMA's definition of marriage unconstitutional under the Fifth Amendment Due Process Clause's guarantee of equal protection. The federal government must recognize same-sex marriages that have been approved by the states.

Obergefell v. Hodges (2015): Obergefell did for same-sex marriage what Loving v. Virginia did for interracial marriage. It held that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. 

The majority opinion, written by Justice Kennedy, explained that same-sex couples sought the same privileges and responsibilities that heterosexual couples sought through marriage. They described the history of marriage as one of evolution and change. Plus, they looked at previous cases, particularly Loving, where the Court found that a particular group of people had a right to marry under the Fourteenth Amendment to the Constitution.

The justices who disagreed with the decision did not voice opposition to same-sex marriage, but instead accused the majority of taking the decision-making power out of the hands of the people. Justice Scalia called the decision a "threat to American democracy." Justice Thomas said the decision was contrary to the intent of the framers of the Constitution, and Justice Alito said that the decision would be used to vilify Americans who are “unwilling to assent to the new orthodoxy.”