Is a Legal Definition of Marriage a Proper Subject of Constitutional Concern?
The simple answer to this question is yes. Regardless of whether as a matter of constitutional theory, marriage should be a question of constitutional law, the United States Supreme Court has made it a question of constitutional concern for over a century. For example, in 1878 the Court addressed the role that marriage and family play in preparing children to assume their responsibilities as citizens when it upheld the federal ban on polygamy. Suffice it to say that in the intervening century, the view of those who serve as Justices on the Supreme Court has changed so that the unanimous conclusion of the Court in Reynolds that polygamy can be outlawed is no long assured as evidenced by Justice Ginsburg’s writings before she took the bench. Marriage also has become a question of state constitutional law through the unrelenting attacks on marriage statutes in the courts. Judges in Hawaii, Alaska, Vermont, and Massachusetts have already mandated recognition of same-sex marriage. In Hawaii
