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Of Constitutional Amendments, Human Rights, and Same-Sex Marriages

Ferris Family Professor of Law, Loyola University New Orleans, School of Law. Parts of this essay were presented at a symposium on Marriage Laws: The Effects of Recent Judicial Intervention Regarding Liberty and Marital Legislation at Tulane University School of Law on January 30, 2004, organized by the LSU and Tulane Chapters of the Federalist Society.

Let me not to the marriage of true minds Admit impediments.

-W. Shakespeare, Sonnet 116

Marriage is the legal recognition of human intimacy; it has endured throughout the ages. It has undergone a myriad of changes since the framing of the republic, and it has emerged, in modern times, as the basis for the family unit. 1Marriage can protect and secure the values of community, autonomy, and sexual and emotional intimacy, for the individuals who choose to enter into it.2 Many individuals prefer to raise children within the institution of marriage. Marriage, at times, has served to institutionalize and perpetuate gender bias in the legal system and in society.3 It has also served to protect or shield abusers and wrong-doers from the reach of the law.4Traditionally, civil marriage has been viewed as a relationship involving a man and a woman. 5Changing mores and attitudes, however, challenge that traditional understanding of marriage. These changes led the Massachusetts Supreme Court to hold in Goodridge v. Department of Public Health that Massachusetts could not deny "the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry."6

Goodridge was preceded by the United States Supreme Court's decision in Lawrence v. Texas, 7which held that there is a realm of personal sexual intimacy and privacy protected from intrusion by the state such that the state may not criminalize adult consensual sexual intimacy and conduct within the home.8 The Lawrence opinion appeared to recognize its relevance to the issue of same-sex marriage; language in the opinion indicates, however, that, for some justices, marriage may be sufficiently distinguished from sexual intimacy in the home to allow states to prohibit same-sex couples from participating in the institution of marriage.9

Our society has recognized that individual human beings are entitled to the protection of the law in the estab...

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