Religion and politics, as we know, shouldn't intermix. The purpose for having a legal marriage through the government is simple: When people decide to be romantically involved in a permanent way, they require certain legal protections in case that arrangement goes bad, in which case specific guidelines are followed to handle various situations between two people in this situation together.

Nowhere in that legal process does the sex of either of these two people matter in any way shape or form legally speaking. Am I wrong?

So someone, please explain to me, a straight guy (therefore non biased) by the way, why the legal system of the US goverment (previously) decided States could base the qualification for legal marriage, on the sex of the people wishing to be married, a position that is in every way shape and form culturally and religiously founded, with no business being included in the law?

I find the distinction no different from our legal system, not too long ago, similarly deciding the people of different skin color couldn't be free. Its intollerance towards 'different', and as an American citizen, I find it appalling that my government recently applied this bevahior in its legal system.

So can anyone explain the legal justification for taking sex of the participants into account in the process of legal, government facilitated marriage?

Note: I'm interested in legal reasoning that gay marriage wasnt supported by the Supreme Court until only last year. It seems like the only reason the change came was due to media pressure and coverage, and our legal system should protect minorities before such coverage is had, for example for the past decade and longer.

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    I'm confused by the question; the ruling in Obergefell v. Hodges, just last year, effectively says that states cannot take sex into account in determining eligibility for marriage. Are you asking about the justification for the law as it stood prior to Obergefell? Mar 25, 2016 at 20:28
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    @NateEldredge yes exactly. If I'm correct, that wasnt the first case ever brought before the Supreme Court on the subject of gay marriage.
    – J.Todd
    Mar 25, 2016 at 20:30
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    Got it. It looks like the place to start reading would be Baker v. Nelson (1971) from the Minnesota Supreme Court, which ruled that it was constitutional to forbid same-sex marriage. SCOTUS upheld it by dismissing an appeal, effectively establishing Baker as nationwide precedent until Obergefell overturned it. So the Minnesota court's opinion in Baker ought to explain their reasoning. I haven't time right now to read it and summarize, though. Mar 25, 2016 at 20:33
  • @NateEldredge thanks. I'll look it up myself.
    – J.Todd
    Mar 25, 2016 at 20:35
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    a position that is in every way shape and form culturally [...] founded That's simultaneously your objection and the answer to your objection: the law is a reflection of society's culture and, as humanity changes over time, we might look back and dislike the culture as it used to be. That is only natural. The only reason we have any laws that make anything illegal is because, in our culture, we still feel like those things are "wrong". Until recently, our (int the sense of society's) culture felt that homosexuality was "wrong" and thus did not condone homosexual relationships.
    – Patrick87
    Mar 25, 2016 at 20:35

1 Answer 1


The first thing to note is that your question is kind of the wrong way around. US states are sovereign and generally have the ability to make any kind of laws they want, unless they violate some specific tenet of federal law or the US Constitution.

You suggest, for instance, that arguments which are "culturally founded" have no place in the law, but that's just your opinion, and there isn't generally anything preventing a state from making law based on such things, should its elected legislature see fit to do so. (Indeed, one could argue that nearly all laws are in some sense "culturally founded", since they are based on some notion of what kind of behavior is or is not appropriate, and those tend to be culturally based.)

So legally speaking, the states aren't, by default, obligated to give any sort of justification for the laws they made. The burden of proof is on the other side. Someone seeking to overturn those laws would have to convince a court that the laws violated some specific provision of the Constitution (or another superior law). If they couldn't convince a court of this, the law would stand.

From what I have read, before the US Supreme Court's 2015 legalization of same-sex marriage in Obergefell v. Hodges, the previous precedent was set in 1971 by the Minnesota Supreme Court in Baker v. Nelson. The decision itself is quite short and is worthwhile to read. Quoting Wikipedia's summary, the plaintiffs claimed that Minnesota's restriction of marriage to opposite-sex couples violated several provisions of the US Constitution:

  • First Amendment (freedom of speech and of association),

  • Eighth Amendment (cruel and unusual punishment),

  • Ninth Amendment (unenumerated right to privacy), and

  • Fourteenth Amendment (fundamental right to marry under the Due Process Clause and sex discrimination contrary to the Equal Protection Clause).

The Minnesota court determined that none of the plaintiffs' objections were valid. Again, I'll refer you to the decision for the details, but the court mainly focused on their Fourteenth Amendment arguments (the others may have been addressed by the trial court, whose opinion I can't find online). They wrote:

The equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state's classification of persons authorized to marry. There is no irrational or invidious discrimination.

They specifically rejected any analogy to bans on interracial marriage, which had been held unconstitutional in Loving v. Virginia:

But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.

Baker appealed to the US Supreme Court, but his appeal was dismissed "for want of a substantial federal question," without any further explanation. (Nobody quite seems to understand what they meant by that, but here is an essay discussing the situation in a little more depth.) The effect of the dismissal was that the Minnesota court's decision became binding precedent upon the whole nation - laws against same-sex marriage didn't violate those provisions of the Constitution. And that was how matters stood for 44 years until Obergefell. (Of course, there was nothing to stop individual states from deciding to allow same-sex marriage, and some in fact did so in the meantime.)

You have suggested that laws against same-sex marriage were religiously motivated. This might suggest an argument that they would violate the Establishment Clause of the First Amendment. The plaintiffs in Baker didn't raise that point, so it wasn't considered in the Minnesota court's opinion. I don't know whether any other courts have considered it; no such argument was mentioned in the opinion in Obergefell.

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