POOOOP asked in Arts & HumanitiesHistory · 7 years ago

Which Amendments give liberty and equality?


I'm doing an essay involving the right to same-sex marriage. Please do not shove your pro- or anti- gay marriage opinions in my face, I'm just trying to find the exact amendments that permit gay marriage, through rights such as "liberty" and "equality". Thank you.

3 Answers

  • 7 years ago
    Favorite Answer

    The Supreme Court precedent, Loving v. Virginia, 388 U.S. 1 (1967), comes to mind which is somewhat on the case and point. In history, we lump this under a method designed to create "starter questions" for our research. The Loving Court stated:

    Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State. (Emphasis added).

    The original articles define the powers of government. The Bill of Rights to some degree, depending on which amendment is the subject of discussion grants rights, privileges and immunities; while others protect rights derived from natural law. The Fifth and Ninth are the amendments that are applicable to your question. If support for your argument is supported by either amendment; then through the incorporation process it would then apply to the states under the Fourteenth Amendment.

    The Fifth Amendment has a provision similar to the Fourteenth Amendment's equal protection. In Bolling v. Sharpe, 347 U.S. 497 (1954) the Court said, "[t]hough the Fifth Amendment does not contain an equal protection clause, as does the Fourteenth Amendment which applies only to the States, the concepts of equal protection and due process are not mutually exclusive." Id. at 499. Be mindful that Bolling was decided before Board of Education, 347 U.S. 483 (1954) ("Brown I"), and reheard again subsequent Brown I because although the Court had struck down school desegregatation in the District of Columbia because it was a federal enclave. Brown I was decided before the Court under the Fourteenth Amendment. For consistency, it had to rehear Bolling. Furthermore, in Bolling, the Court acknowledged that "liberty" could not be given a precise term; however, it declared that "that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective." Bolling at 500.

    The Ninth Amendment is a catch all for those rights that were not specifically addressed in the previous eight amendments, i.e. privacy issues. The Fifth Amendment does not grant life or liberty, but insures that before one is deprived of it, that it is done under due process which is notice and opportunity to be heard (notice and hearing). To avail under the due process clause under the Fifth Amendment, one must have liberty or property interests at stake. So a law would have to grant same sex marriages before applicable parties could assert a violation under the Fifth Amendment.

    Be mindful though although the Fifth and Fourteenth Amendments contain "equal protection" provisions, these do not universally apply. Thus is the reason why there was a push for an Equal Rights Amendment. Although women's rights have advanced significantly in the past decades. They are still excluded from basic constitutional protections. Their rights in certain regards are protected by statutory enactments; not by the constitution per se. So this why the struggle for the "liberty" to marry whomever and to seek equality under the laws is so difficult. Very complex situation not to mention that States' police power under the Tenth Amendment to declare what constitutes a marriage; not that of the federal government. Marriage, like the right to vote has always fell under the purview of States' power to declare what constitutes a marriage, union or relationship between two people.

    Finally, governmental discrimination is permitted if it serves some legitimate governmental purpose. To determine if a governmental law or regulation is constitutional. It must survive one of the standards created by the Supreme Court: strict scrutiny, intermediate scrutiny, and rational basis test. See United States v. Carolene Products Company, 304 U.S. 144 (1938), footnote 4. Since you are concerned with "liberty", the rational basis test would be applied the Court. The government's legitimate purpose here is to promote procreation for the purposes of inducing different sexes to mate to produce a productive offspring to pay taxes, make bills, etc for the continuation of the economy.

    Therefore, same sex marriages do not offer this and subject to discrimination and regulation. Also same sex unions or marriages would open entitlements under struggling Social Security Act programs and insurance proceeds from private insurers; whereas insurers are not required to make payouts to same sex unions or their partners in states where these unions are not recognized. Individuals who passed without wills could have their property ceded to the state. The reasons are countless, but I think you get the picture.

    Good luck on your research.

    Also look at this link below on the questions of marriage and equal protection of married women in the United States well after the enactment of the Constitution, Bill of Rights and the Fourteenth Amendment. It is make this a little clearer.


  • 7 years ago

    There is no "right to marriage" (same-sex or otherwise)

    ... The argument for same-sex marriage arises from the "equal protection" clause of the constitution:

    Amendment XIV

    Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

  • 7 years ago


    The Bill of Rights doesn't grant rights. It simply reminds our government that it's a limited government, and lists some of the areas over which it has no authority.

    You might get a little mileage out of a 14th Amendment argument, but don't hold your breath on that being smooth sailing.

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