Expert: Michael Troy - 2/12/2010

Question
QUESTION: Some people want to amend the constitution to ban same-sex marriage. How would an amendment like that conflict with the provisions already in the constitution?

ANSWER: Hi Lynn,

I see you are from Canada. Are you asking about the US Constitution or Constitution of Canada.

- Mike



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QUESTION: The US Constitution. I'm not from canada.

ANSWER: OK, thanks.

There is nothing in the US Constitution as written that speaks to homosexuality, or even marriage.  Same sex marriages were illegal throughout the United States under more than two centuries of living under the Constitution.  It was not until 2004 that a State first allowed same sex couples to marry.  That was the result of a State Supreme Court decision in Massachusetts which held that State laws barring same sex marriages violated the State Constitution.  No Court has ever held that anything in the US Constitution permits or even explicitly allows marriages between members of the same sex.

Some advocates have argued that the 14th Amendment may be used go guarantee the right to same sex marriage.  That Amendment guarantees the right to due process and equal protection of the laws.  The US Supreme Court used those Constitutional provisions to void State laws preventing couples of different races from marrying one another (Loving v. Virginia (1967)).  Same sex marriage advocates argue that those same arguments should apply to granting such a right to same sex couples.  However, if an amendment explicitly addressed the issue of same sex marriage, any more generic provision which might have been creatively interpreted by a court to recognize such a right would be irrelevant.

I hope this helps!
- Mike




---------- FOLLOW-UP ----------

QUESTION: Thanks so much. That helps. I was curious since you brought it up, what are some of the differences between the canadian and the us constitution?

Answer
The Canadian Constitution, which was completely overhauled in 1982, is much longer and included much more explicit language banning discrimination based on sex.  This has been interpreted by a number of Canadian Courts as meaning the Constitution guarantees protection of same sex marriage and overturned several provincial laws banning the same.  The dispute became irrelevant in 2005 when the federal government passed the Civil Marriage Act, explicitly guaranteeing the right to same sex marriage throughout the country.

- Mike