First of all, I regard homosexuals as brethren & sisters. I respect their desire to marry, as I know of no way in which their lifestyle choices (of which being homosexual is not one) will affect me.

However, I fail to see how gay marriage bans are unconstitutional.

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    You want the long version? Read the complete official statement by the US Supreme Court on supremecourt.gov/opinions/14pdf/14-556_3204.pdf
    – Philipp
    Jun 29, 2015 at 8:13
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    Justices Roberts, Alito, Thomas, and Scalia also couldn't see how marriage bans are unconstitutional. Many think this Supreme court has been implementing policies favored by elites rather than interpreting law in a consistent way.
    – lazarusL
    Jun 29, 2015 at 13:14
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    Actually, much of the reason was due process, not equal protection.
    – cpast
    Jun 29, 2015 at 20:49
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    @SamIam - IANAL, but that sounds... fishy as a legal argument. You can marry anyone of opposite gender but not same, no matter what your gender is. So the law always applied to each gender equally. Then again, a good lawyer can always prove that sky is earth and vice versa.
    – user4012
    Jun 29, 2015 at 22:33
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    @Geobits - I never joke about lawyers or bubonic plague or other dangerous things.
    – user4012
    Jun 30, 2015 at 17:11

1 Answer 1


The Equal Protection clause of the 14th Amendment prohibits any state from denying equal protection under the law. The specific wording of the 14th Amendment is as follows:

nor [shall any state] deny to any person within its jurisdiction the equal protection of the laws.

With regards to same-sex marriage specifically, this means that the state cannot treat heterosexual and homosexual marriages differently, as this would constitute unequal treatment under the law. From the decision (emphasis added):

It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right

The Court largely justified its decision under the Due Process clause of the 14th Amendment. However, since Bolling v. Sharpe, due process legally implies equal protection. In fact, the 5th Amendment's Due Process clause is what the Court used to rule Section 3 of the Defense of Marriage Act unconstitutional in US v. Windsor.

US v. Windsor provides us with more information as to specifically how bans on homosexual marriage result in unequal protection for homosexuals under the law. From the decision:

It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive.


It deprives them of the Bankruptcy Code's special protections for domestic-support obligations.


It forces them to follow a complicated procedure to file their state and federal taxes jointly.


It prohibits them from being buried together in veterans' cemeteries.

The fact that bans on same-sex marriage result in the law treating homosexual couples and heterosexual couples differently means that such bans imply unequal protection under the law, and thus violate the Constitution's prohibition on unequal protection under the law.

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    I took the liberty of expanding the quote and adding emphasis. You did find something I missed in my reading of it. Thank you.
    – Bobson
    Jul 2, 2015 at 22:15
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    @moonman239 Brown v. Board. It has to be the same institution. A separate but equal one wouldn't really be equal.
    – Publius
    Jul 3, 2015 at 13:57
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    @Bobson The Supreme Court had no Constitutional grounds upon which they could insist that governments start calling legal marriages "civil unions". But you are correct in that they couldn't call gay marriages one thing and straight ones another. They'd have to be the same thing.
    – Publius
    Jul 6, 2015 at 3:37
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    @Bobson having all legal marriages be civil unions would get around the "separate but equal" problem. It's just that the court can't mandate it. For example, marriage has never traditionally been an exclusively religious institution, and so the Court would be wrong to decide that the government administering marriages is an establishment clause violation.
    – Publius
    Jul 6, 2015 at 3:52
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    Quoting something that people have to be treated equally, and then concluding that a law that treats couples differently is unconstitutional, is a blatant non sequitur. Sep 23, 2017 at 1:24

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