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right tomarry is a fundamental right with Supreme Court precedent that the 14th Amendment’s equal

protection and due process of law clauses invalidate state laws that impinge on the fundamental

right to marry, and to lead to the conclusion that choosing a spouse, even of the same gender, is a

fundamental right.

The Federal Courts of Appeals are falling in line with the view that the 14th Amendment preempts

state laws that refuse to recognize the validity of same-sex marriage, with the notable exception of

the 6th Circuit which ruled the other way, and not including the 5th Circuit (Texas, Louisiana and

Mississippi) which has several such cases under advisement. The U.S. Supreme Court has avoided

the question several times, but shortly before this article was written the Supreme Court granted

review of the 6th Circuit Court of Appeals’ decision to allow Tennessee, Kentucky, Ohio and Michigan

to continue to enforce laws that bar recognition of same-sex marriages.

On January 6, 2014, the U.S. Supreme Court denied certiorari in three cases where U.S. courts

of appeals had invalidated state constitutions and statutes that denied the validity of same-sex

marriages. The result was to leave in place circuit court decisions invalidating such laws in West

Virginia, North Carolina, South Carolina, Kansas, Colorado, and Wyoming.

U.S. Supreme Court Decisions

Baker v. Nelson.

3

In

Baker v. Nelson

, the U.S. Supreme Court considered an appeal from the

Minnesota Supreme Court, which had rejected a claim that a Minnesota law banning same-sex

marriage violated the U.S. Constitution. The U.S. Supreme Court dismissed the appeal “for want of

substantial federal question.”

Hollingsworth v. Perry

.

4

After the California Supreme Court held that limiting marriage to opposite-

sex couples violated the California Constitution, California voters passed a ballot initiative known as

Proposition 8, amending the California Constitution to define marriage as being a union between