Does the Constitution Really Say There Is a Right to Marry?

For two centuries, marriage was something the states decided.
In 2015, five justices decided it for all fifty of them.
They found the answer in words written in 1868 — words whose authors gave no indication they meant that way.

By Jeff Bayard | Does the Constitution Really Say? — Part 13

This is the thirteenth part of Does the Constitution Really Say?, a Virginia Christian Alliance series on the Supreme Court cases where the original meaning of the Constitution was quietly swapped for something else. Earlier parts asked:

• A Developer Seizes Your House
• Your Coach Is Fired for Praying
• Your True Words Are Called Dangerous
• A Word in the Law Is Quietly Rewritten
• Read All Twelve Earlier Parts

You won’t find this take anywhere else. Not because it’s a secret. But because almost no one still does the work of going back to the actual words. This series does.

This week: a question the country was still working out, and the day the working out stopped.

The Vote That Went Nowhere

Bill is seventy-one. He has voted in every election since Nixon, and he can tell you every place his polling station has ever been.

In November of 2006, he stood in line at an elementary school and voted on a ballot question about marriage. He read it before he marked it, standing right there with the ballot in his hand. He voted yes.

He was not alone. About 1.3 million other people in his state voted the same way — roughly fifty-seven percent. It passed.

Twenty-nine other states did something similar in those years. Some voted the other way. A few legislatures took it up instead. The country was arguing, state by state, the way the country argues about hard things.

Then one morning in June of 2015, it was over.

Not because Bill’s side lost a vote. There was no vote. Five people in Washington decided the question for all fifty states at once, and every ballot cast on the subject — every one, in every state, on both sides — stopped mattering that day.

Bill is not asking you to agree with how he voted. That is a separate argument and people are entitled to have it.

His question is smaller, and it is the one this series has asked twelve times already:

Where in the Constitution does it say they could do that?

So here is the question. Does the Constitution really say there is a right to marry?

What the Words Meant

The Court did not invent a marriage clause. There isn’t one. What it used was the Fourteenth Amendment, added in 1868, right after the Civil War.

Here is the part that matters:

…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.

Read it twice. There is no marriage in it. No definition of marriage. Not a word about who may marry whom.

And that was not an accident. Marriage had always been state business. Each state set its own rules — the age, the license, the waiting period, who could perform the ceremony. Those rules were different in Virginia than in Maryland, and for two hundred years nobody thought that was a federal problem.

Now the honest part, because this series does not skip the honest parts.

The Supreme Court had reached into marriage once before, and it was right to.

In 1967 the Court struck down Virginia’s law banning marriage between a white person and a black person. The case was Loving v. Virginia. The vote was 9 to 0. Not one justice disagreed.

So it is not true that marriage was never a federal question.

But look at why that case was different, because the difference is the whole point.

The men who wrote the Fourteenth Amendment in 1868 had just fought a war over slavery. They wrote those words to stop states from treating black Americans as less than citizens. That was the central purpose — the thing everyone understood the amendment was being adopted to accomplish. It was debated that way, voted on that way, and ratified that way.

So when the Court struck down a law saying a black man could not marry a white woman, it was not stretching anything. It was enforcing the exact thing those words were written to do.

That is the test this series applies every single time. Not is this a good outcome? The question is always: is this what the words were written to mean?

Hold onto that, because it is about to matter.

What the Words Now Mean

On June 26, 2015, the Supreme Court decided Obergefell v. Hodges. Justice Anthony Kennedy wrote the opinion. The vote was 5 to 4.

The holding: the Fourteenth Amendment requires every state to license marriages between two people of the same sex, and to recognize those marriages performed in other states.

Four justices dissented. Each one wrote separately to say why.

Here is what that meant on the ground. Thirty-five states still had marriage bans in their constitutions, their statutes, or both — though by that summer lower federal courts had blocked many of them, which is how the question reached the Supreme Court in the first place. Other states had gone the opposite way, some by legislation, some by their own courts. The legal map was different almost everywhere you looked.

One decision, carried by one vote, replaced every bit of it.

Now put that next to Loving.

Loving enforced what the 1868 authors wrote those words to do.

Obergefell found something in those same words that would have surprised the men who wrote them and the states that ratified them. For nearly a century and a half after 1868, nobody thought those words required every state to redefine marriage.

The words did not change in 2015. The reading changed.

That is the move this series has traced twelve times now, in twelve different corners of the Constitution. A phrase sits there meaning one thing for generations. Then it is read to mean something else, and everything built on the old reading comes down.

What Makes This One Different

Stop here, because this part matters and it would be easy to get wrong.

Part 11 was about a government leaning on private companies to quiet speech, with no law ever passed. Part 12 was about an agency deciding a word in a law meant something new, with nobody voting on it.

Both of those happened in the dark. That was the complaint.

This one happened in broad daylight.

Nine justices. Signed opinions with their names on them. Four dissents, published, making the other case at full strength. Front page of every newspaper in America. Nothing was hidden from anybody.

So the objection here is not secrecy. It is something else, and it is worth saying plainly.

Millions of Americans were still working this question out. Some states had voted one way, some the other, some had not gotten to it yet. The process was slow and messy and it was happening.

Five people ended it.

You can believe the result was right and still believe that was the wrong way to reach it. Those are two different questions. This series has always been about the second one.

What Happened Next

Eleven years on, here is the honest answer: it has held.

In 2022, when the Court overturned Roe v. Wade, many people expected marriage to be next. The majority went out of its way to say otherwise — that the decision was about abortion and no other right. One justice wrote separately to say the Court should revisit Obergefell. He wrote alone. Nobody joined him.

In 2025 someone finally asked. A former county clerk from Kentucky filed a petition asking the Court to overturn Obergefell — the first formal request since the ruling came down.

On November 10, 2025, the Court said no.

Not a long opinion. Not a close vote announced from the bench. A short, unsigned order turning the case away, with no explanation.

And here is the detail worth sitting with: not one justice noted a dissent. Not even the one who had written three years earlier that the Court should take another look.

Meanwhile several state legislatures took up resolutions asking the Court to reverse itself. A few passed. Others died — and in one state the senate voted its own resolution down by nearly two to one, with more than two dozen members of the majority party voting against it.

The ruling is standing. The country has largely settled around it.

That does not make the 2015 reasoning right. It makes the question harder, and this series would be dishonest to pretend otherwise.

The Strongest Argument the Other Way

The other side of this deserves a fair hearing at full strength.

Marriage is not an abstraction. It is who gets into the hospital room. It is who inherits the house. It is who signs at the school and who decides when someone cannot decide for himself. Those things do not wait.

Before 2015, a couple lawfully married in one state could cross a state line and become legal strangers. Not treated differently — strangers, with no standing at a bedside. Courts exist to settle exactly that kind of conflict.

And Loving is the hard case for anyone who says the states should have been left alone. Nobody today argues Virginia should have kept its ban on interracial marriage until Virginians got around to changing their minds. The Court stepped in. The Court was right.

That is a serious argument. Here is the serious answer.

Loving did what the Fourteenth Amendment was written to do. Obergefell did something else — it found a new meaning in old words and called it the same thing. If that is allowed, then the words do not constrain anybody. They just wait for five votes.

And the practical argument — that a national patchwork is a real problem — is an argument for having one answer. It is not an argument about who writes it.

Two Ways a Constitution Changes

Here is a distinction that almost never makes it into the argument, and nothing else in this piece makes sense without it.

There are two different things people mean when they say the Constitution changed.

One is the text. The actual words on the page. Changing those requires Article V — two-thirds of both houses of Congress to propose it, and three-quarters of the states, thirty-eight of them, to ratify it.

Notice what that demands. Not a majority. Not a good argument. Not five votes. It requires the country to genuinely agree, in enormous numbers, across regions and parties and every kind of disagreement Americans have.

That is not a flaw in the design. That is the design. The founders made it hard on purpose, because a constitution that changes easily is not a constitution at all — it is just this year’s opinion written on nicer paper.

And that door is not theoretical. It has been opened twenty-seven times. Americans used it to end slavery, to give women the vote, to elect senators directly, to lower the voting age. Every one was a hard fight won by people who persuaded a supermajority of their countrymen. The Fourteenth Amendment itself — the very words at issue in this case — came through that door in 1868.

The other is the meaning. What those same words are understood to require.

And this is where we have to be careful, because it would be easy to say something false here.

That change is interpretation, and interpretation is a real and necessary thing. The Constitution is full of broad phrases — equal protection, due process, commerce among the states, the freedom of speech. Those phrases do not apply themselves. Somebody has to decide what they mean when a real dispute lands in front of a judge, and the founders knew that. Chief Justice John Marshall settled it early: saying what the law is belongs to the courts.

So the question is never whether courts may interpret. Of course they may. That is the job.

The question is how far a reading can travel before it stops being interpretation.

Both answers to that deserve to be heard.

One side says the Constitution sets down broad principles rather than a rulebook, and that judges must apply those principles to circumstances the founders could not have imagined. A phrase like “equal protection” was written in general terms precisely so it could reach cases nobody in 1868 foresaw. On this view, Obergefell is what the Fourteenth Amendment always meant, finally applied.

The other side says that when a reading travels far enough from the original understanding, the court has done in practice what Article V exists to do — and it has done it without the thirty-eight states. Not illegally. Just without anyone’s consent.

This argument is as old as the country. Thomas Jefferson worried about handing judges that much power over what the Constitution means. Marshall answered that interpreting it is inseparable from deciding cases. They were both serious men and neither one was foolish.

And it is not only the courts. This series watched the same question in a different branch. Part 12 traced a word Congress wrote in 1972 that an agency later read to mean something else — no new statute, no vote, just a new reading of an old text. Congress writes broadly; agencies fill in the details; the details become the rule people actually live under. Supporters say modern government is too complex to work any other way. Critics say lawmaking has drifted away from the people who face elections.

Same structure. Same question. Where is the line?

This piece does not pretend to settle a two-hundred-year argument. But here is what can be said plainly, and it is the reason this series exists.

When the text changes, everybody knows. There is a proposal, a debate, thirty-eight state legislatures, and a date. When the meaning changes, most people find out afterward — if they find out at all.

And this is the thing to be clear about, because it is what this series has been saying for thirteen parts. The Constitution already contains a procedure for building a national answer. Article V exists because the founders knew some questions would eventually need one. The objection is not that the country reached a single rule on marriage. It is that the rule arrived by a route that asked nobody’s permission.

Congress showed the other honest road in 2022, passing a law on marriage recognition through both chambers, on the record, with every member’s name attached to a vote their constituents could see.

Both roads were open in 2015. They still are. What they share is that they are slow, public, and reversible — and that the people who live under the result get to be part of producing it.

Did God Really Say?

This series is named for a question asked in a garden. The serpent did not begin with a lie. He began by loosening a word: “Has God indeed said…?”

Twelve times now we have watched that same move in American law. A word sits still for generations. Then someone reads it differently, and everything resting on it shifts.

Scripture does not treat marriage as something people invented and can therefore redraw. It treats it as something established at the beginning, before there was a nation or a court to have an opinion about it.

And when someone came to Jesus asking Him to loosen the definition, watch what He did.

“Have you not read that He who made them at the beginning ‘made them male and female,’ and said, ‘For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh’?” (Matthew 19:4–5, NKJV)

Have you not read.

He did not survey the crowd. He did not ask how the culture had moved, or what the word had come to mean, or what people were prepared to accept. He went back to the original text and read it out loud.

Two thousand years before anyone thought to give it a name, that is the whole method of this series, modeled by Christ Himself. When the meaning of a thing is in dispute, go back and read what was actually written.

It is not a complicated rule. It is just an unpopular one.

What the Citizen Does

Start by knowing the words for yourself. Hillsdale College offers Constitution 101 free and online. Hillsdale takes no state or federal money — not even student aid — which keeps its teaching free of political pressure. Dozens of courses, no cost, go at your own pace. Start there.

Then read the Fourteenth Amendment for yourself. The whole thing takes four minutes. Most Americans have strong opinions about it and have never read a line of it.

When you do, ask the question this series is named for. Not do I like where this landed? Ask: are these words doing what the men who wrote them meant them to do — or what somebody needed them to do?

That question works on every case in this series. It worked on a farmer’s wheat and a fisherman’s boat and a coach on the fifty-yard line. It works here.

And then remember what Bill actually lost in 2015.

Next time in Does the Constitution Really Say?… Part 14 closes the series. Thirteen words that moved, side by side, and one last look at the oldest question in the book.