Same-sex marriage: Six precedents the Supreme Court may consider

In this file photo from Aug. 12, 2010, gay couple Tara Walsh, left, and Wen Minkoff embrace outside City Hall in San Francisco. The U.S. Supreme Court decided Friday, Dec. 7, 2012, to hear the appeal of a ruling that struck down Proposition 8, the state’s measure that banned same sex marriages. The highly anticipated decision by the court means same-sex marriages will not resume in California any time soon. The justices likely will not issue a ruling until spring of next year. A federal appeals court ruled in February that Proposition 8’s ban on same-sex marriage was unconstitutional. But the court delayed implementing the order until same-sex marriage opponents proponents could ask the U.S. Supreme Court to review the ruling. (AP Photo/Ben Margot)


A love Supreme: Six rulings that could affect same-sex marriage case

The right to marry is not explicitly mentioned in the Constitution and marriage is an issue typically handled by states, so justices may look to precedents set by previous courts.

Storified by Digital First Media · Fri, Dec 14 2012 08:25:13

The U.S. Supreme Court may make a major decision on same-sex marriage soon. Last week, the court decided to hear arguments on two gay marriage cases from New York and California. But the right to marry is not explicitly mentioned in the Constitution and marriage is an issue typically handled by states, so justices will likely look to precedents set by previous courts.
Below are six cases that justices are likely to refer to in their decisions.

1878: Reynolds v. United States

The case: George Reynolds was a Mormon during the era when the church allowed men to take multiple wives. Under a federal law prohibiting bigamy, he was sentenced to two years in prison for marrying two women. Before the court, Reynolds cited his First Amendment rights to freedom of religion.
The decision: The court ruled 9-0 that federal law could bar polygamy.
Notable quote: “Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. … From that day to this we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. … Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law.” — Chief Justice Morrison Waite, writing for the majority
Why it matters: Though they may not cite this case, the current court’s conservatives will likely use similar reasoning: Same-sex marriage has not been allowed historically in the United States, therefore the government may prohibit it.

1965: Griswold v. Connecticut

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Estelle Griswold, executive director of the Planned Parenthood League of Connecticut, is shown in 1965. (AP Photo)
The case: A Connecticut law outlawed the sale of contraceptives, even to married couples. Estelle Griswold, head of the state chapter of Planned Parenthood, opened a birth control clinic along with a doctor in order to challenge the law. They were found guilty and each fined $100.
The decision: The court ruled 7-2 that the law violated the right to marital privacy.
Notable quote: “We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.” — Justice William O. Douglas, writing for the majority
Why it matters: The right to marry may not be explicitly mentioned in the Constitution, but in this case the Supreme Court argued it is essentially in there because of the other rights that are mentioned.

1967: Loving v. Virginia

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Mildred and Richard Loving in 1967. (Wikimedia)
The case: A Virginia law made interracial marriage a crime. A black woman named Mildred Jeter and a white man named Richard Loving traveled to Washington, D.C., to wed. When they returned, they were found guilty of violating the law and sentenced to one year in prison unless they agreed to leave the state.
The decision: The court ruled 9-0 that laws against interracial marriage were unconstitutional.
Notable quote: “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival. … The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the state.” — Chief Justice Earl Warren, writing for the majority
Why it matters: This is another Supreme Court precedent mentioning the right to marry, though this time it located it in the guarantees of liberty in the Fourteenth Amendment.

1978: Zablocki v. Redhail

The case: A Wisconsin law required court permission for people to get married who had children they weren’t taking care of. Roger Redhail was denied a marriage license because he owed child support for a child from a previous relationship. 
The decision: The court ruled 8-1 that the statute violated equal protection rights. 
Notable quote: “Appellant asserts that two interests are served by the challenged statute: the ‘permission to marry’ proceeding furnishes an opportunity to counsel the applicant as to the necessity of fulfilling his prior support obligations; and the welfare of the ‘out of custody’ children is protected. We may accept for present purposes that these are legitimate and substantial interests, but, since the means selected by the State for achieving these interests unnecessarily impinge on the right to marry, the statute cannot be sustained.” — Justice Thurgood Marshall, writing for the majority
Why it matters: Like Loving v. Virginia, the justices ruled that this law violated the equal protection clause, but here they went even further, since the law did not deal with race-based restrictions.

1987: Turner v. Safley

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The Missouri State Penitentiary in Jefferson City is shown in 2003. (AP Photo/The News Tribune, Julie Smith)
The case: A Missouri prison regulation barred inmates from getting married without the permission of the warden, which would essentially be granted only if a woman was pregnant. Other prison regulations also were part of the case.
The decision: The court ruled against the marriage restrictions, but for the other prison regulations.
Notable quote: “First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. … Finally, marital status often is a precondition to the receipt of government benefits (e.g., Social Security benefits), property rights (e.g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e.g., legitimation of children born out of wedlock).” — Justice Sandra Day O’Connor, writing for the majority on the marriage issue
Why it matters: It’s another example of the court finding the right to marry in the Fourteenth Amendment. In this case, justices also pointed to some tangible benefits of marriage. 

2003: Lawrence v. Texas

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The two men who spent the night in jail in 1998 on sodomy charges, John Lawrence, center, and Tyron Garner, right, sit with their attorney in a 2003 press conference. (AP Photo/Michael Stravato)
The case: A Texas law prohibited sodomy. John Lawrence, a gay man, was arrested after police raided his house based on a false tip about a gun and discovered him in bed with another man.
The decision: The court ruled 6-3 to overturn anti-sodomy laws in Texas and other states.
Notable quote: “Although the laws … purport to do not more than prohibit a particular sexual act, their penalties and purposes have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. They seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons.” — Justice Anthony Kennedy, writing for the majority
Why it matters: This case affirmed the rights of gays and lesbians to be in relationships and it was written by a key swing justice in the upcoming same-sex marriage cases.

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