The Constitutionality of Traditional Marriage

John C. Eastman, Chapman University

This article was originally published for The Heritage Foundation on January 25, 2013.

Abstract

In United States v. Windsor and Hollingsworth v. Perry, the Supreme Court will consider the constitutionality of government policies that reflect traditional marriage—that is, marriage as a union between one man and one woman. If the Court does not dismiss these cases on jurisdictional grounds, it should act to uphold traditional marriage. Nothing in the Court’s jurisprudence suggests that the right of same-sex couples to have their relationships recognized as marriages is so fundamental as to be protected by the Constitution’s Due Process Clause. Nor does the Equal Protection Clause require that result, given the societal purpose and value of marriage as furthering procreation and child-rearing. Because the Constitution does not speak to this question, it is one that is left to ordinary political processes, not to judicial fiat.