JURIST Guest Columnist Chris Wester, New England School of Law, Class of 2016, discusses how rights for same-sex couples in the US have evolved…Many of the rights that our society refers to today as basic, uninhibited and fundamental to the lives of all American citizens were not constitutionally guaranteed without substantial civil unrest and debate. The development of LGBTQ rights within society, specifically those affording same-sex couples the right to marry, is clearly no exception. Recently, our country has seen tremendous action on society’s national stage with regards to the debate over same-sex couples’ constitutionally fundamental right to marry. It is truly incredible how much our society has evolved since the first instance in which this issue was raised before and dismissed by the US Supreme Court “for want of a substantial federal question” in Baker v. Nelson. Such evolution is clear evidence that the fundamental rights enumerated within the Constitution have revolutionized in congruence with societal advancement and are substantially affected by social unrest. The history of the same-sex marriage debate, coupled with the unparalleled developments set forth over the last decade by federal and state legislative and judicial branches have the supporters of marriage equality viewing the Supreme Court’s most recent decision in an optimistic and positive light. While it is guardedly presumptive to predict a possible outcome of the pending decision before the Supreme Court, it is likely that the justices will continue the tradition of redefining the scope of marriage equality by officially extending such right to all American citizens.

As is outlined in Judge Sarah Zabel’s Florida Circuit Court decision in Pareto v. Rubin, social unrest and debate leads to the expansion and recognition of constitutionally fundamental rights. The debate over same-sex couples’ fundamental right to marriage exploded onto the national canvas throughout 2014. In response to this discussion and the social conflict that has spawned from it, the Supreme Court made an announcement on January 16, 2015 that our country and, indeed, the entire global society, was anxiously awaiting: the court will finally address the constitutional issue of state bans on same-sex couples’ right to marry. And, while this decision is clearly going to be a controversial one, it is most certainly not premature from a social, political or judicial viewpoint. To date, 36 states have adopted laws that recognize same-sex couples’ fundamental right to marriage, either through judicial decree or legislative procedures. That is more than half of the US individual jurisdictions combined. Support for the benefits of marriage equality has come from practically every aspect of society, either tacitly or through more direct forms of communication. In May 2012, President Obama publicly supported the extension of the fundamental right to marriage for same-sex couples, becoming the first sitting President in our nation’s history to do so. Even the Pontiff of the Roman Catholic Church, arguably one of the most conservative and traditional organizations in the world, has expressed a change in view regarding the benefits of unions for same-sex couples, albeit far from the open arms that American society seems to be extending. While neither the Executive Branch of the US Federal Government nor the Roman Catholic Church has the authority or power to interpret, broaden or else expand the fundamental rights of the US Constitution, communication from these institutions, and so many others, is illustration of the breadth, depth and scope that this universal debate has had on our global society.

Furthermore, the significant increase of states that officially recognized same-sex marriage within their jurisdictions over the last four months is a clear indication that the recognition of marriage between same-sex couples is no longer the scandalous and dramatically misunderstood issue that it once was even less than five years ago. As Mr. Lyle Dennison, contributor to SCOTUSblog, writes, “Since the Supreme Court last took action on [this] issue, denying review on October 6 of cases from five states, same-sex marriages have become legal in seventeen more states.” As this issue continues to develop through the judicial system on both the state and federal levels, it is becoming increasingly clear just how highly fundamental the right to marry is considered to be within the American culture.

It will be interesting to see how the justices approach the final resolution of this provocative consideration. The academic and professional arenas agree that the main substantive issues that the court must decide will focus on the Equal Protection and Due Process elements of this matter: deciding, once and for all, the generation-long question of whether or not same-sex couples have a constitutionally protected right to marry. Moreover, the court will be tasked with the everlasting burden of determining which level of scrutiny will be appropriately applied to this decision-making process. If approaching the analysis from a position that primarily focuses on Equal Protection, the court will likely apply strict scrutiny in determining whether or not a particular state’s statute has a legitimate governmental interest in its purpose, and whether or not such an alleged interest can be more narrowly tailored by the State so as to not affect the fundamental right at issue. Alternatively, if the court approaches the analysis from an angle that focuses in on the Due Process arguments, all that the Court must do is apply a rational basis review in determining whether or not the State successfully argues that there is a substantial governmental interest that is rationally connected to the statute in question. Or, the court might perhaps tread a course that falls in between the two extreme levels and adopt a more intermediate level of scrutiny in balancing a particular state’s interest against the right of individual citizens that is at stake. Yet, it is abundantly clear how essential the majority of the US holds the right to marry to be a constitutionally protected right of all American citizens, regardless of sex, gender or sexual orientation. Furthermore, it is important to note that it would likely be detrimental to the current position of case law, and indeed much of the current legislation involving Equal Protection, for the Court to hold that marriage is not a fundamental right afforded to all American citizens since the development of the Supreme Court’s precedent over the last few decades has interpreted the country’s constitutional law to hold otherwise.

While arguments that oppose the official recognition of same-sex marriage adamantly hold that the Supreme Court should apply a modest “rational basis” test under a Due Process analysis, such opinions will likely not pass muster with the court. Opponents of marriage equality focus their argument on the fact that states have a legitimate interest in the protection of traditional family values and in regulating marriage for the purpose of sustaining the legitimacy of biological childrearing. The crux of the opposition’s argument does not extend its substantive reasoning much beyond the formalism of traditional family values and the protection of the conventional child-rearing process. However, it has been determined time and again that the societal structure of the modern family has significantly evolved beyond that of the traditional, biological organization. As Judge Zabel aptly wrote in Pareto, “Tradition alone does not constitute a rational basis for any law…” Furthermore, there is ample research and documentation that the benefits of a family relationship can be, and are, established in dynamics that diverge from the traditional household. In today’s society, modern families are created in a plethora of motivated structures—adoptive families or close bonds between extended family members or friends just to name a few common relationships. Just as the breadth and expansion of fundamental, constitutional rights have occurred over the centuries, so similarly has the definition and interpretation of the concept of family. As such, it is unsound to adamantly argue that the fundamental right of marriage should be denied to same-sex couples on the grounds of tradition preservation and child rearing. Such arguments simply do not reflect the evolution of society in the twenty-first century.

The debate surrounding marriage equality that our nation has witnessed over approximately the last thirty years truly is a testament to the essential processes of a democratic society—freedom of speech, freedom of expression and the ability to safely articulate one’s genuine beliefs as part of an environment in which we are not civically oppressed and quelled. All of these characteristics summarize the hallmark of a true democracy. The political history of global society throughout the centuries has shown us that societal evolution is inevitable as a result of public unrest. Our own nation has seen such evolution through the last few decades and the continuation of such progression through the official recognition of same-sex couples’ constitutional right to marry is the next logical step in our society’s formulation of a more perfect union.

Chris Wester is a second-year student at New England School of Law, where he serves for New England Law|Boston OUTLaws as Representative to the Massachusetts LGBTQ Bar Assocation. He has a BA in Administration of Justice and Psychology from Salve Regina University. He also has a Professional Certificate in Paralegal Studies from Boston University.

Suggested Citation: Chris Wester, The Evolution of a More Perfect Union: The Development of Same-Sex Marriage in the United States, JURIST – Student Commentary, Jan. 24, 2015, http://jurist.org/student/2015/01/chris-wester-evolution-marriage.php.