Does the United States Constitution support same-sex marriage?

Answer 1

Nowhere in the US Constitution is marriage or homosexuality (or anything like that) mentioned or even inferred. It is not mentioned or referred to in ANY of the various Federalist Papers or other textual material produced by the Founding Fathers at the time of the Constitution's creation, either.

However, by long tradition and by the simple expedient that the Constitution does not mention marriage (and the Supreme Court has not declared marriage as one of the "inferred" (e.g. Necessary and Proper) powers), the Constitution leaves marriage as something that the States are empowered with.

In addition, the Supreme Court has ruled that marriage is a fundamental right (Loving v Virginia (1967)) of the people, which means that any attempts by the state to regulate marriage must use strict scrutiny as the standard - this is the most restrictive test a law must pass to be valid. That is, for a law to pass strict Constitutional scrutiny when it attempts to regulate a right, it must pass ALL THREE of these tests:

1. There must be a compelling government interest in the restrictions - that is, it must be necessary or crucial that the restrictions be in place, not merely that they are preferred or traditional or popular.
2. The restrictions must be narrowly tailored as possible to achieve the stated goal; that is, the restrictions must be the absolute minimum necessary to obtain the goal, and have either no or negligible side-effects on anything else.
3. The regulations must be the least restrictive means by which to accomplish the goal. If there is another way that accomplishes the goal that doesn't entail these regulations and that other way places fewer restrictions on people's freedoms, then that way must be used instead of this law.

If a law fails any of the above tests, the law is unConstitutional.

The sole method by which marriage is even peripherally addressed

in the Constitution is via the Full Faith and Credit Clause (Article IV, Section 1):

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

The implications of this Clause are that marriages (as a State-regulated public Act) which are valid in one state, must be recognized as valid in any other state, even if the specifics of the marriage are such that it would not be legal to perform that marriage in another state. So, if you get legally married in State A, then move to State B, State B must recognize your marriage as valid, even if you could not get married in State B.

The Defense of Marriage Act (1996) passed by Congress has come under attack for violating both the above concepts: it attempts to say that the Federal government will not recognize as valid same-sex marriages (as marriage is a power restricted to the States, the Federal government cannot claim to not recognize a marriage that a State has sanctioned), and also it attempts a direct end-run around the Full Faith and Credit Clause, by allowing other states to avoid recognizing same-sex marriages performed in certain states. DOMA will eventually end up in front of the Supreme Court, and all indications are that it will be invalidated, for the aforementioned reasons.

The larger question is whether individual states can continue to ban same-sex marriages themselves. The 9th Amendment and the 14th Amendments were key Constitutional foundations of the above Loving v Virgina case, and also are key arguments that restrictions on same-sex marriages are unConstitutional (as is applying the reasoning of Loving itself as precedent).

In the end, once DOMA is invalidated (and, this author can't see any realistic scenario where it won't be overturned, as even the more conservative members of the Supreme Court favor the reasons supporting a ruling of unConstitutional), same-sex marriage will become legal everywhere. While a couple may not initially be able to get married in any state, the Full Faith and Credit Clause will result in those couples traveling to a state which does perform same-sex marriages, getting married, then their "home" state must recognize that marriage.

Answer 2

Although the US Constitution does not explicitly mention same-sex marriage, the United States Supreme Court, the final arbiter on questions of constitutionality, ruled on June 26, 2015 that same-sex couples have a constitutional right to marry in all US states and territories.

Answer 3

No. There's nothing in the Constitution regarding marriage.

Answer 4

Yes. On June 26, 2015, the United States Supreme Court ruled that same-sex couples have a constitutional right to marry.