# "Born Free and Equal" Clauses Gain Traction in Same-Sex Marriage Litigation
State constitutional provisions guaranteeing that all persons are "born free and equal" increasingly shape same-sex marriage disputes, offering plaintiffs an alternative to federal constitutional claims under the Fourteenth Amendment.
These state-level clauses, present in numerous state constitutions, provide grounds for challenging marriage restrictions without relying solely on U.S. Supreme Court precedent in Obergefell v. Hodges, 576 U.S. 644 (2015). The Obergefell decision established a federal constitutional right to same-sex marriage, but state courts interpreting their own constitutions offer additional layers of protection.
Litigants now strategically invoke "born free and equal" language to argue that state marriage laws violate both state and federal constitutional guarantees of equal protection and fundamental rights. State supreme courts examining these provisions have recognized their applicability to sexual orientation discrimination in marriage contexts. This approach provides litigants with backup arguments should federal jurisprudence shift or face narrowing interpretations.
The practical significance lies in dual-track litigation strategy. When federal constitutional claims face uncertainty, state constitutional provisions create independent grounds for relief. Courts in states like California, New York, and others have already recognized these clauses' protective scope extends to marriage equality. State constitutional amendments and provisions prove more difficult to overturn than federal precedent alone.
This development reflects broader constitutional litigation trends favoring state-level protections. Since Dobbs v. Jackson Women's Health Organization, 142 S. Ct. 2228 (2022), overturned the federal constitutional abortion right, plaintiffs increasingly rely on state constitutional provisions for fundamental rights protection. Same-sex marriage advocates follow this pattern.
Legal experts view this strategy as prudent. State constitutions provide anchoring doctrines