By Joshua Baker & William C. Duncan, Legal Analysts

This article was first published by the Institute for Marriage and Public Policy in their January 2011 edition.

The majority of courts to consider the issue, as well as the majority of people voting on it, have rejected a right to same-sex marriage. Over the past decade, the overwhelming majority of Americans who have been able to vote on the definition of marriage have soundly rejected the idea that same sex marriage is a civil right. Thirty states have have enacted amendments to their constitutions defining marriage as the union of a husband and wife. In Maine, voters rejected a state law that redefined marriage, and in Iowa, voters defeated all of the three judges up for retention who had voted in favor of same sex marriage.

It is less well known that the majority of American courts have also rejected the idea that there exists in state and national constitutions a right to same sex marriage.

Since 2003, when the Massachusetts Supreme Judicial Court ruled invalid Massachusetts common law rules recognizing marriage only as the union of husband and wife, a total of four state high courts have ruled marriage laws unconstitutional.

Over the past ten years, at least ten other state and federal courts (excluding cases still pending on appeal) have ruled that marriage laws are not discriminatory, but rather are based on a legitimate relationship between the states’ definition of marriage and procreation, including decisions from the high courts of Maryland, New York, and Washington, as well as the U.S. Court of Appeals for the 8th Circuit.

Even in New Jersey, where the courts mandated equal benefits for same sex couples, the courts rejected the notion that the marriage laws constitute sex discrimination.

Additionally, during this time period four major international cases have upheld laws defining marriage as the union of a husband and wife.


State Supreme Courts

Conaway v. Deane:

“Virtually every Maryland case applying Article 46 has dealt with situations where the distinction drawn by a particular governmental inaction or action singled out for disparate treatment, men and women as discrete classes . . . . Based on our precedents interpreting Article 46, we conclude that the Legislatureʹs and electorateʹs ultimate goal in putting in place the Maryland ERA was to put men and women on equal ground, and to subject to closer scrutiny any governmental action which singled out for disparate treatment, men or women as discrete classes . . . .

Turning to the language of Family Law § 2-201, it becomes becomes clear that, in light of the aforementioned purpose of the ERA, the marriage statute does not discriminate on the basis of sex in violation of Article 46. The limitations on marriage effected by Family Law § 2-201 do not separate men and women into discrete classes for the purpose of granting to one class of persons benefits at the expense of the other class. Nor does the statute, facially or in its application, place men and women on an uneven playing field. Rather, the statute prohibits equally both men and women from the same conduct.”

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