Judicial Notebook

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 unconstitutional.

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 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 marry.

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 Constitution.

APA filed amicus briefs in both Windsor and Perry at the Supreme Court (see APA amicus brief challenges Defense of Marriage Act and Proposition 8). 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 orientation.
  • 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.

“Judicial Notebook” is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).


i Loving v. Virginia, 388 U.S. 1 (1967).

ii Docket No. 12-307

iii Docket No. 12-144

iv Perry v. Brown, 671 F.3d 1052 (2012)