The Supreme Court takes
a new look at marriage
BY ROBERT A. BEATTEY, JD, GRADUATE CENTER AT CITY UNIVERSITY OF NEW YORK
AND CYNTHIA CALKINS MERCADO, PHD, JOHN JAY COLLEGE OF CRIMINAL JUSTICE
In 1967, the DSM-II was a year away from publication, the United States was two years away from landing on the moon
and Thurgood Marshall would be sworn in as an associate justice of the U.S. Supreme Court. But 1967 was also known for
less progressive ideas: It was a felony in at least 16 states —
down from the high of 37 — for blacks to marry whites. Not
until Loving v. Virginiai was decided in June 1967 were state laws
prohibiting “mixing of the races” through marriage declared
Today, as this article goes to press, the U.S. Supreme
Court has heard oral argument in two marriage cases:
Windsor v. United Statesii and Hollingsworth v. Perryiii. The
two cases involve the same subject matter, but different legal
questions. Windsor challenges the constitutionality of Section
A basic premise of our system of law is
that when it proposes to limit behavior
or restrict an individual or certain class
of individuals in pursuing the fullest
expression of human potential, there must
be a rational basis for doing so.
3 of the 1996 federal Defense of Marriage Act (DOMA),
which prohibits the federal government from recognizing
any marriage that is not between a man and a woman.
Hollingsworth deals with the constitutionality of California’s
Proposition 8, which took away a previously existing right in
the state for same-sex couples to marry.
While the Supreme Court could address same-sex
marriage head-on in Hollingsworth, the core issue addressed
by the court will likely be the question of whether Prop.
8 is unconstitutional, not because it denied same-sex
couples the right to marry,iv but because it stripped away a
previously established right to marry. This is an important
legal question, but thus framed, it might be seen as more a
question about California election law than about the right to
Because Windsor challenges a federal law that prohibits
federal recognition of valid state marriages, it seems unlikely
that the court will directly address some aspects of same-sex
marriage. That said, it is legally unnecessary for the court
to consider whether there is an affirmative right to same-sex marriage under the Constitution: There is a vast legal
difference between finding the federal government cannot
refuse to recognize a valid state marriage and finding that
same-sex marriage is an affirmative right found in the
APA filed amicus briefs in both Windsor and Perry at the
Supreme Court (see page 23). In the briefs, APA and others
who joined in submitting the briefs document the significant
body of research that demonstrates:
• Homosexuality is a normal expression of human sexual
• Same-sex couples are capable of raising healthy, well-adjusted children.
• Psychological harm can result from denying same-sex
couples the right to marry.
APA’s 2011 Resolution on Marriage Equality For Same-Sex
Couples and the briefs, both of which cite an extensive body
of research, are available on APA’s website.
Both law and psychology are disciplines fundamentally
concerned with human behavior and the human condition.
A basic premise of our system of law is that when it proposes
to limit behavior or restrict an individual or certain class
of individuals in pursuing the fullest expression of human
potential, there must be a rational basis for doing so.
Psychologists are uniquely positioned to set aside personal
opinions, passions and prejudices in favor of evidence-based
analyses of whether there is any rational basis for refusing to
recognize same-sex marriage. n
“Judicial Notebook” is a project of Div. 9 (Society for the Psychological Study of Social Issues).
iLoving v. Virginia, 388 U.S. 1 (1967).
iiDocket No. 12-307
iiiDocket No. 12-144
ivPerry v. Brown, 671 F.3d 1052 (2012)