02/08/2012 11:16 pm ET Updated Apr 09, 2012

Constitution Check: Do Gay Couples Now Have a Constitutional Right to Get Married?

In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today's topic: same-sex couples and marriage.

The statements at issue:

"There's no reason that people ought to be deprived of their constitutional rights now that those rights have been affirmed by the Court of Appeals."

-- David Boies, one of the attorneys for two California same-sex couples, during the PBS NewsHour broadcast, Feb. 7, commenting on the decision that day of the Ninth U.S. Circuit Court of Appeals striking down the Proposition 8 ban on gay marriage.

"The court has rendered a powerful affirmation of the right of same-sex couples to marry."

-- California Gov. Edmund G. Brown Jr., in a statement issued by his office, Feb. 7, referring to the Ninth Circuit Court's ruling.

We checked the Constitution, and...

The language of rights, and especially of constitutional rights, is sometimes not used with precision. More can be claimed by a simple suggestion that rights exist than is, in fact, true. One could say that Attorney Boies and Governor Brown were right in their comments about the Ninth Circuit Court's decision on Tuesday in the case of Perry v. Brown. But only up to a point, and only if some added facts are taken into account.

If they were referring to rights under the California state constitution, they may prove to be correct. The Circuit Court's decision will have the effect (if it holds up after an appeal) of re-instituting a California Supreme Court decision in 2008, titled In re Marriage Cases. In that ruling, the state court declared that there is a fundamental right to marry under the California constitution, and it cannot be denied to same-sex couples.

That decision, of course, was overturned in November 2008 when the state's voters approved Proposition 8, amending the state constitution to declare that "only marriage between a man and a woman is valid or recognized in California." Under the Ninth Circuit Court's new ruling, Proposition 8 was found to violate the federal Constitution, so it no longer would control, and thus the right of gays and lesbians to marry would be restored fully under that ruling, assuming that the decision stands. It is still on hold, pending appeals.

Although that decision was based upon the guarantee of legal equality, in the Fourteenth Amendment, it did not declare that same-sex couples have a fundamental right to marry under the federal Constitution. Indeed, the court explicitly avoided deciding that question. The ruling was limited to the conclusion that it is unconstitutional discrimination for a state, once it has given gay couples a right to marry, to take it away from them when that has been done solely in reaction to the sexual orientation of those couples.

The Circuit Court thus stopped well short of what, in an earlier stage of the case, U.S. District Judge Vaughn R. Walker of San Francisco had decided. He ruled that same-sex couples do have "a fundamental right to marry," under the Fourteenth Amendment's Due Process Clause, and that California could not take away that right based on a couple's sexual identity.

Since the Circuit Court did not embrace that part of the ruling, it essentially has lost its status as a binding precedent for this case.

It is true that there is, indeed, a fundamental right to marry under the federal Constitution. The U.S. Supreme Court ruled that way as early as 1942, in the case of Skinner v. Oklahoma, declaring: "We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race."

The Court ruled in 1967, in the case of Loving v. Virginia, that it violated the Fourteenth Amendment to deny that fundamental right to couples based upon the differing races of the man and woman. But the Court has never ruled explicitly, as Judge Walker did, that the right exists for couples of the same sex.

There is a dispute, and it figured in the Proposition 8 case, over the current meaning and impact of a decision the Supreme Court made in 1972, in the case of Baker v. Nelson. There, without briefing and hearing, the Supreme Court dismissed an appeal by a Minnesota gay couple. The Minnesota Supreme Court had rejected their claim that denial of a marriage license for them violated their rights under the Fourteenth Amendment. That "summary dismissal" is a binding precedent, just as a full-scale decision would be, if a later case is found to be a close or exact parallel to the Baker lawsuit.

But, in the Ninth Circuit Court ruling Tuesday, none of the three judges-including the judge who dissented on the same-sex marriage part of the ruling-found that 1972 decision to control the Proposition 8 case.

No doubt, though, the opponents of same-sex marriage will be attempting, as their case moves up in the federal court system, to continue to rely upon the Baker precedent to make their point.

Lyle Denniston is the National Constitution Center's Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court's work.