There is no reference to marriage in the Constitution. However, the US Supreme Court has held that the Equal Protection Clause of the Constitution (the 14th Amendment) protects the rights of citizens against state/local/federal laws which restrict or deny the rights of citizens to the orderly pursuit of happiness by free men and SCOTUS has held that the freedom to marry is a vital personal right to the orderly pursuit of happiness by free men.
The US Supreme Court held in
Loving v. Virginia:
Loving v. Virginia, 388 U.S. 1
We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.
II.
These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. 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.
To understand the civil rights struggles one has to understand that the constitution provided for and protected slavery.
Whether slavery was to be permitted and continued under the new Constitution was a matter of conflict between the North and South, with several Southern states refusing to join the Union if slavery were disallowed. Thus, in spite of a warning from Virginian George Mason that slaves "bring the judgment of Heaven on a country," the continuance of slavery was clearly sanctioned in the U.S. Constitution, although the words slave and slavery are not found anywhere in the document. Section 2 of Article I states that apart from free persons "all other persons," meaning slaves, are each to be counted as three-fifths of a white person for the purpose of apportioning congressional representatives on the basis of population. Section 9 of Article I states that the importation of "such Persons as any of the States now existing shall think proper to admit," meaning slaves, would be permitted until 1808. And Section 2 of Article IV directs that persons "held to Service or Labour in one State, under the Laws thereof, escaping into another," meaning fugitive slaves, were to be returned to their owners.
The Bill of Rights, adopted in 1791, says nothing about slavery. But the Fifth Amendment guaranteed that no person could "be deprived of life, liberty, or property, without due process of law." Slaves were property, and slaveholders had an absolute right to take their property with them, even into free states or territories.
That is why the 13th and 14th amendments had to be adopted, to make the slaves free and to ensure that the states would afford them that freedom. To make them equal persons to the white people, not just 3/5ths of a person.
Thirteenth Amendment
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime where of the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have the power to enforce this article by appropriate legislation.
Adopted on December 6, 1865
Fourteenth Amendment
1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Despite the 13th and 14th Amendments, states adopted laws that discriminated against people of race relying on the 10th Amendment. Segregation laws and the miscegenation statutes (prohibiting interracial marriages) were supported by the majority of the citizens of many states.
The US government had to step in and take action, either by lawsuits to enforce the Constitution and to protect the rights and/or by executive orders of the president (the guard sent in to states like Arkansas and Mississippi to allow children of race the access to the public schools).
Also, the citizens aggrieved had to file suit and have their matters heard by courts that had the jurisdiction and authority to rule that the segregation/ miscegenation statutes were unconstitutional. Someone with standing, like the Lovings, had to take the matter all the way to the Supreme Court. Someone that was personally affected by the statutes, someone that had their rights infringed and/or denied as a result of the statutes had to seek redress, had to sue to seek mandates that afforded them the right to enjoy the
vital personal rights essential to the orderly pursuit of happiness by free people.Had the Equal Rights Amendment passed it obviously would have bolstered the equal rights efforts of all. Unfortunately, the ERA didn't pass (or get much support) because too many believed that Title VII of the Civil Rights Act provides the needed protections. Sadly, what has occurred over the last 8 years is the bastardization of the DOJ - the agency that is, by statute, charged with protecting the rights of citizens.
"... to authorize the attorney General to institute suits to protect constitutional rights in public facilities and public education, to extend the Commission on Civil Rights, to prevent discrimination in federally assisted programs, ... "The civil rights struggles have been hampered over the last 8 years because the GWB admin has politicized the DOJ and has not pursued the litigation on behalf of citizens aggrieved. There has yet to be a SCOTUS or federal decision that holds that "sexual orientation" is a protected class entitled to the rights enumerated in the Constitution and/or the protections afforded by Title VII of the Civil Rights Act. The GWB admin skirted many of its responsibilities while it abused the power of its office. I'm not sure how long it will take to correct the wrongs but I believe that the Obama administration will make every effort to correct the wrongs and to represent the needs of all citizens.
When Obama was asked about a marriage amendment he said he was not in favor of the same because marriage is not defined in the constitution. He is correct and that is a huge distinction, a very important consideration. The "not defined in the constitution" is a very important distinction made because it reflects that Obama knows the constitution and the importance of abiding by it.
IMHO, he may personally be against same sex marriage because of his religious views but as a lawyer and as the leader of this nation, he knows what the constitution provides and that is equality under the law for all. Separation of church and state is not simply about protecting the churches from the interference of the state, it also concerns protecting the citizens from the interference of religion if that religion tries to infringe upon constitutional guarantees.
And if folks have some suspicion about whether distinctions can be made between personal beliefs and legal purpose please keep in mind that there are catholic and mormon and other religious men serving as judges that grant divorces. Their religions may not approve of divorce but they took an oath to follow the law and their state laws do afford citizens the right to get divorced, the right to have their legally sanctioned marriage/union dissolved.
Consider too the criminal lawyers that defend people they know are guilty. They are not defending to "get the client off" they are defending to ensure that the accused is afforded his/her constitutional rights. Most lawyers, not all, are either trained or wired to put their personal views aside when doing their jobs. Like all things, the practice of law has been hampered by the business of law, that is yet another reason why the civil rights concerns of the citizens have been handicapped over the last 8 years. There is little money in pursuing civil rights actions. By the designs of the GWB administration, the courts are not plaintiff/civil rights friendly.
Remember, Obama has been using Lincoln's examples to structure his administration. Remember, Lincoln freed the slaves - slavery having been abolished there still remains a class of citizens that yearn for and are entitled to their freedom, their equality.
Good leaders do not let their religious views interfere with their role as guardians of the constitution. I believe Obama will be that type of good leader. I am praying, for the sake of our nation, that he is that type of leader.
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