Is Same-Sex Marriage Legal in All 50 States?

two supreme court cases paved the way for marriage equality

By Jonny Lupsha, Wondrium Staff Writer

Does the United States allow same-sex marriage? The road to marriage equality has been long and difficult, but Supreme Court cases have paved the way. Landmark lawsuits spell out the legality of American marriage equality.

Judge's gavel and LGBTQ flag with marriage rings on top
A June 26, 2015, ruling by the U.S. Supreme Court determined that same-sex couples have a constitutional right to marry under the 14th Amendment. Photo by Ground Picture / Shutterstock

Every nation on Earth has different laws about marriage. Interracial marriages, interfaith marriages, marriages between two partners of the same sex, polyamory, the age of consent to marry, and other factors are all subject to the whims of any country’s culture and legal system. The United States is no different; landmark cases like Loving v. Virginia and Obergefell v. Hodges have set precedent in the Supreme Court for which marriages must be recognized by law.

Congress recently sent a bill to President Joe Biden mandating that same-sex marriages be recognized by federal law. In his video series Liberty on Trial in America: Cases that Defined Freedom, Professor Douglas O. Linder, the Elmer Powell Peer Professor of Law at the University of Missouri-Kansas City School of Law, explains the early days of the more than 50-year history of same-sex marriage rights in the United States.

Baker and McConnell

The Supreme Court decided on Loving v. Virginia in 1967, ruling that state laws banning interracial marriage violated the U.S. Constitution. It also said that interracial marriage bans violated the due process clause.

The question of same-sex marriage arose very shortly, thereafter.

“The case arose in Minneapolis [when] a law student named Jack Baker and a librarian named Michael McConnell sought and were denied a marriage license in 1970,” Professor Linder said. “Their lawyer took the issue to the Minnesota Supreme Court. He compared the ban on same-sex marriage to the ban on interracial marriage in the Loving case.

“Only here, he said, the law was based on ‘heterosexual supremacy,’ not ‘white supremacy.'”

The Minnesota ruled against them, and the U.S. Supreme Court dismissed their appeal. According to the U.S. Supreme Court, same-sex marriage didn’t even ask a “substantial federal question.” The reason its results aren’t surprising is that at the time, the Court had viewed race a “suspect category.” Professor Linder said that this meant whenever a state used racial classifications, their laws “would be subject to very demanding judicial scrutiny.”

Sexual orientation, on the other hand, wasn’t a suspect category. It still isn’t, and neither is gender identity. Even the due process clause failed Baker and McConnell, partly because the public’s and judges’ minds too closely related marriage with biological procreation and so a marriage that couldn’t biologically produce children was seen as less of a marriage than the Lovings’.

A 40-Year Hiatus

In the 40 years between hearing cases on same-sex marriage, social attitudes towards homosexuality and other non-heterosexual relationships began to change. The federal Defense of Marriage Act was challenged by United States v. Windsor and the Supreme Court voted five to four to strike down the law that refused to recognize same-sex marriages for federal purposes.

“Two years later, with courts around the country split, the court finally agreed to answer the question of whether state bans on gay marriage violated the equal protection or due process clause, or both,” Professor Linder said. “The landmark case is known as Obergefell v. Hodges. Five justices of the court—the four liberals and Justice Kennedy—agreed that the bans did indeed violate both provisions of the 14th Amendment.”

Writing for the court, Justice Kennedy said that the framers of the Constitution didn’t presume to know the permanent extent of freedom in the nation, and with more recent insight, “The Court now holds that same-sex couples may exercise the fundamental right to marry.”

Liberty on Trial in America: Cases That Defined Freedom is now available to stream on Wondrium.

Edited by Angela Shoemaker, Wondrium Daily