A Right to Marry? Same-sex Marriage and Constitutional Law

A Right to Marry? Same-sex Marriage and Constitutional Law

Martha Nussbaum
in Dissent:


WHAT IS the same-sex marriage debate about? It is not about whether same-sex relationships can involve the content of marriage: few would deny that gays and lesbians are capable of friendship, intimacy, “meet and happy conversation,” and mutual responsibility, nor that they can have and raise children (whether their own from a previous marriage, children created within their relationship by surrogacy or artificial insemination, or adopted children). Certainly none would deny that gays and lesbians are capable of sexual intimacy.

Nor is the debate, at least currently, about the civil aspects of marriage: we are moving toward a consensus that same-sex couples and opposite-sex couples ought to enjoy equal civil rights. The leaders of both major political parties appeared to endorse this position during the 2008 presidential campaign, although only a handful of states have legalized civil unions with material privileges equivalent to those of marriage.

Finally, the debate is not about the religious aspects of marriage. Most of the major religions have their own internal debates, frequently heated, over the status of same-sex unions. Some denominations—Unitarian Universalism, the United Church of Christ, and Reform and Conservative Judaism—have endorsed marriage for same-sex couples. Others have taken a friendly position toward these unions. Mainline Protestant denominations are divided on the issue, although some have taken negative positions. American Roman Catholics, both lay and clergy, are divided, although the church hierarchy is strongly opposed. Still other denominations and religions (Southern Baptists, the Church of Jesus Christ of Latter-day Saints) seem to be strongly opposed collectively. There is no single “religious” position on these unions in America today, but the heat of those debates is, typically, denominational; heat does not spill over into the public realm. Under any state of the law, religions would be free to marry or not marry same-sex couples.


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