For better and worse, U.S. constitutional law has long expressed the opinion that marriage is essential to both individual and collective well-being. In the 1923 case, Meyer v. Nebraska, the Court ruled that the liberties protected under the doctrine of substantive due process included:

Sixty-five years later, the Court decided Zablocki v. Redhail and offered its most extensive exposition on the fundamental right to marry. Unlike Meyer, Zablocki was decided under the Equal Protection Clause of the Fourteenth Amendment. In his majority opinion, Justice Marshall argued that:

These opinions exemplify the Court’s problematic jurisprudence on marriage: Meyer simply assumes the fundamentality of marriage, whereas Zablocki irrationally presumes that marriage is coterminous with sex, reproduction, and family. Perhaps the most famous of the Court’s marriage cases, Loving v. Virginia, shares these flaws, taking marriage to be fundamental because it wrongly presumes a connection between marriage itself and the beneficial ends that marriage is thought to facilitate. Moreover, Loving most clearly exposes why constitutionalizing marriage is not only erroneous, but also dangerous.