Skip to Main Content

The Supreme Court and Same-Sex Marriage

One of the great political debates that occupied our Founding Fathers was over the proper balance between democracy and individual rights. They had fought a war against the tyranny of a single monarch, but they were rightly concerned that the tyranny of the majority would do no better when it came to respect for minority rights. Fast forward to today and some see a form of this debate being replayed in two Supreme Court cases dealing with the contentious issue of same-sex marriage. The Defense of Marriage Act defined marriage at the federal level as between a man and a woman, while the Prop 8 ballot initiative amended the California state Constitution to ban same-sex marriage. DOMA and Prop 8 were enacted through the democratic process, the former created and passed by duly appointed representatives in Congress, and Proposition 8 voted on by Californians. Both are being challenged at the Supreme Court on a variety of legal grounds, which we will explore in this week’s eLesson.

Supreme Court Cases:

News Articles:


  1. What questions regarding same-sex marriage did the Supreme Court hear recently?
  2. What constitutional questions were involved?
  3. Do individual rights change with the times, or are they inherent?
  4. Is marriage a “right” in the same way that freedom of speech or religion are “rights”? Explain.
  5. Do rights change if a supermajority wants them to? (i.e. if 90% of the American people vote for a law as opposed to 51%?)
  6. The federal system divides spheres of authority between the federal government, state government, local governments, and the individual. For example, different states have different marriage laws, with some explicitly allowing it (same-sex marriage?) and others banning it. What do you see as the benefits of this division of authority? What about the costs?
  7. Should states that do not permit same-sex marriage be required to recognize marriage contracts from other states that allow same-sex marriage? Why or why not?

Extension: The Constitution is silent on marriage laws, which, under the 10th Amendment, means the states keep the power to regulate it. Research controversial cases on matters the Constitution does not specifically give Congress the power to regulate. What cases have decided these questions? How does the issue of same-sex marriage compare/contrast to these issues?

  • abortion
  • assisted suicide
  • medical marijuana
  • speed limits
  • drinking age