Marriage

Mildred and Richard Loving in Washington, D.C., after the Supreme Court struck down the Virginia law that had prohibited their interracial marriage, 1967.
Air Force Sgt. Erwynn Umali and Will Behrens enter the reception room through the honor guard saber arch after their civil union ceremony, 2012.
Professor Ann Cammett (a 2000 graduate of CUNY Law) leads the Family Law Concentration at CUNY Law.

In 1879, the Supreme Court articulated the view of monogamous marriage and rejected polygamy in Reynolds v. United States. Reynolds had argued that religious duty compelled him to practice polygamy, but in a unanimous decision the Court ruled that polygamy was an offense against society not worthy of religious protection according to the First Amendment. National sentiment believed that the family helped maintain social order and that Mormon polygamy threatened the traditional family. Interestingly, the Court found that polygamy was “patriarchal” although just six years earlier, in Bradwell v. Illinois, the Court had rejected the idea that a woman who was married could practice law.

The issue of miscegenation attracted the Court’s attention in Pace v. Alabama (1883), when the Court upheld an Alabama anti-miscegenation law that resulted in an Alabama interracial couple being sentenced to two years in jail for “living in a state of fornicating or adultery.” The Supreme Court refused to hear the miscegenation case of Naim v. Naim (1956), in part because of the racial tensions created by the groundbreaking Brown v. Board of Education decision two years earlier. But in 1967, the Court in Loving v. Virginia (1967) affirmed marriage as a fundamental right and invalidated a state ban on interracial marriage on 14th Amendment equal protection grounds. The Court also invalidated bans on marriage by prisoners and by persons who owed child support.

Following Massachusetts’s recognition of same-sex marriage by state court opinion, 11 other states and the District of Columbia have followed suit, even as 31 states continue to ban same-sex marriage. The national trend is to leave the determination of the right of marriage to the states. In the 2013 term, the Court decided United States v. Windsor and ruled unconstitutional section 3 of the federal Defense of Marriage Act (1996), which had prohibited federal marriage recognition of same-sex marriages. In the companion case of Perry v. Hollingsworth, the Court declined to consider whether there was a constitutional right to same-sex marriage, with the effect that individual states choose whether to recognize marriage between two men or two women. By June 2013, if one’s marriage is legally recognized by one’s state, so too would the federal government recognize it, but another state may not recognize it.

Back to Top