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Constitutional Issues Present in Marriage — Same-Sex Marriage

The Supreme Court recently began its 2012-2013 term. One of the most hotly anticipated issues which may be brought before the Court is the constitutionality of same-sex marriage. Two of the most common legal arguments in support of  same-sex marriage is that prohibiting it violates the equal protection clause and the due process clause. Both provisions are contained in the 14th Amendment.

While it is impossible to predict a certain outcome in any supreme court decision, this is not the first time constitutional issues have been present in the Supreme Court’s decision-making regarding marriage/the family. In Loving v. Virginia, the Supreme Court struck down a state law and held that laws banning interracial marriage violated the equal protection clause in that it discriminated on the basis of race. In Zablocki v. Redhail, the Court invalidated a state law which banned individuals who were delinquent in child support payments from re-marrying; the rationale was that the fundamental right to marry heavily outweighed an individual’s financial capacity. In Reynolds v. U.S., however, the Court did uphold a state law which prohibited bigamy (being married to more than one spouse) on the grounds that it was supported by a strong state justification. In Troxel v. Granville, the Court struck down a state statute that allowed any person to petition for visitation rights of a child at any time on the grounds that it unconstitutionally infringed on a natural parent’s fundamental right to raise his/her child.

It would not be surprising, therefore, to see the Court, if and when it takes up the issue of same-sex marriage and/or the Defense of Marriage Act (“DOMA”), to rely on the foregoing precedents in makings its decision. Contact us with questions.

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