Line of growth 

Constitutional law develops in a line of growth. The Supreme Court’s decision in one case serves as a precedent for its decisions in later cases, and constitutional rights can be extended in the line of growth. The court’s 1954 decision in Brown vs. Board of Education, striking down racial segregation in the public schools, was extended in 1967 to strike down bans on interracial marriage. In 1965, the court held that the Fourteenth Amendment’s due process clause protected the right of a married couple to use contraception in their intimate relations. That decision was extended to protect the right of unmarried persons to use contraception, and in the court’s famous 1973 Roe vs. Wade decision, it was further extended to protect the right of a woman to a safe and legal abortion.

The Supreme Court recently held that the due process clause protects the right of consenting adults to engage in sexual relations in private. In so holding, the court struck down a Texas law, directed against gay and lesbian persons, that prohibited anal or oral sex between persons of the same sex. The court emphasized that this prohibition denied gay and lesbian persons the ability to express themselves in intimate conduct with another person and so to create a more enduring personal bond.

The Constitution thus protects the right of same-sex persons to be intimate with each other, and the state may not punish such intimacy on the ground that it considers it to be “immoral.” The court had earlier held that a state violated the Fourteenth Amendment’s equal protection clause by expressly denying gay and lesbian persons the protection of any anti-discrimination laws.

These precedents can and should be extended in the line of growth to hold that the Constitution protects the right of same-sex couples to marry. Marriage is a legal relationship based on commitment and intimacy. Under the due process clause, marriage is a “fundamental right,” and any restriction on the right to marry must have a very strong justification. The court, for example, has struck down rules prohibiting marriage by prison inmates and by parents who were not in compliance with support orders.

While marriage, of course, has traditionally meant a legal relationship between a man and a woman, there is no logical or even rational reason why marriage should be so limited. Same-sex couples can and do have the same kind of committed and intimate relationships as opposite-sex couples. They get up in the morning, go to work, take care of their children if they have them, share life’s joys and problems, and unfortunately, like opposite-sex couples, sometimes break up.

The only difference between same-sex couples and opposite-sex couples in committed relationships is in the way the couples express their physical intimacy with each other. Since the court has held that the way in which consenting adults express their physical intimacy is constitutionally protected, this difference cannot justify the state’s denying same-sex couples the legal status of marriage that it provides to opposite-sex couples. And since the state cannot constitutionally prohibit physical intimacy between same-sex persons as being “immoral,” it cannot constitutionally prohibit their marriage as being “immoral” either.

Our Constitution is a document intended to endure. The court must interpret the Constitution with reference to the needs and values of contemporary society. In the 21st century, the “fundamental right” of marriage need not mean exactly what it meant in the 19th century. Thus, the court may properly hold that for constitutional purposes, marriage includes a committed and intimate relationship by same-sex persons, and that the state has no valid justification for refusing to allow such marriages.

The state’s refusal to permit same-sex couples to marry is also another form of irrational discrimination against gay and lesbian persons that violates the Fourteenth Amendment’s equal protection clause. Our Canadian neighbors have a constitution with an equal protection clause very similar to ours, and Canadian courts have recently held that this provision gives same-sex couples in committed relationships the right to marry. These courts emphasized how unfair and irrational it is to deny same-sex couples the right to marry that is given to opposite-sex couples. For the same reasons, our Supreme Court should hold that this discrimination against same-sex couples violates our equal protection clause.

In our constitutional system, we rely on the Supreme Court to define the meaning of the Constitution and to protect individual rights. The court’s decisions protecting individual rights will sometimes run counter to popular sentiment. But as the court has stated: “Constitutional rights are not subject to vote. They depend on the outcome of no election.” Even if the decision will not be a broadly popular one, the court should hold that same-sex persons have a constitutional right to marry.

Robert A. Sedler is distinguished professor of law and Gibbs Chair in civil rights and civil liberties at Wayne State University. Send comments to

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