One of the matters lurking around the Supreme Court’s oral arguments this week is the degree to which marriage is a fundamental right. Gay marriage advocates argue that marriage’s fundamental nature demands that the state has an obligation to extend such a recognition to homosexual couples.
Whenever a fundamental right is abridged, a strict scrutiny analysis is conducted and government must provide a compelling interest. If it can do so, it then has to justify that its infringement is both narrowly tailored and that it is the least restrictive means of achieving its stated objective. This is a very high bar for the government to clear and such analyses begin with the presumption of unconstitutionality.
There are apparently fourteen cases in which the Court has used similar kinds of language to describe marriage as a fundamental right. If this is so, the gay marriage argument suggests that the Court will determine the government does not have a compelling interest to treat homosexuals differently, and/or that even if it does have such an interest, there are other means available (civil unions?) for government to achieve its objectives that are either more narrowly tailored or less restrictive of the right to marry.
One of the briefs submitted to the Court before oral arguments addressed this question in a forthright and specific fashion. The Center for Constitutional Jurisprudence, with John C. Eastman as lead counsel, argues that marriage is indeed fundamental (start on page 25), but that it does not apply to homosexual couples. The argument is that in the cases in which the Court refers to marriage as fundamental, like Loving v. Virginia, where the Court struck down state-wide bans on inter-racial marriage, it is deemed fundamental because of its inherently procreative nature and because of its social and cultural importance as the dominant manner in which children are raised and the species is perpetuated. In this sense, denying the right to couples of a different race did not survive constitutionally because it prevented them from exercising their freedom to reproduce within the recognized marital context.
If homosexuals seek to appeal to marriage as fundamental, then, they are doing so even though they are, as a class, unable to fulfill the characteristics that define the freedom as fundamental initially. In this sense, according to Eastman, homosexual couples are not “similarly situated” to other couples, like the one in Loving, who were denied on the basis of a status that had nothing to do with procreation. So, “strict scrutiny” would not necessarily be triggered in such a situation.
Nathan Dollison
March 27, 2013
In regards to the matter of procreation, the issue came up in the oral arguments regarding couples who marry that are past childbearing age (elderly) and those who are sterile. If procreation and propogation of the species is to be used to argue for heterosexual marriage and/or a ban on homosexual marriage, would the state then have the power to regulate/restrict marriage when it involves hetersexual couples when one or both partners, whether due to age, or other condition, would make the union incapable of procreation?
Can that aspect of the issue be satisfactorily addressed so as to protect hetersexual marriage because of procreation reasons while at the same time not ceding the fundamental nature argument to homosexuals?
Mark Crellin
March 27, 2013
Is not our fundamental right , life, liberty, pursuit of happiness ?
and now..marriage is also ?.. I do not understand why the Government needs to be sooooo involved in our lives. If same couples choose to break Gods word, let them live with consequence of their choice, not force this on all people
William
March 27, 2013
Dr Smith — The difficultly is that this is a good philosophical argument (the premises are true and the logic flows correctly), but an unconvincing legal argument because the logical rigor isn’t mirrored in reality. If the real issue concerns procreation and raising children, why permit couples that are incapable of procreating or raising children (either mentally or physically) to be able to marry? In light of this disconnect, the Court will have no trouble supplementing the reasons set out in Loving (which were not labeled an exclusive list) and finding a more expansive fundamental right.
Any thoughts on this? I would be interested to hear your views.
Mark Caleb Smith
March 27, 2013
I think I agree with you in so far as the Court will have no trouble reconciling the rationale it put forth in Loving with a decision to strike down either or both laws at issue this week. My larger problem is with the notion of the Court’s creation of “fundamental rights” out of extra-textual sources. To me, this is what leads down this particular rabbit-trail.
Robbie George tackles this in a recent article in the Harvard Journal of Law and Public Policy. He, and his colleagues, argue that as a moral construction, marriage is about the relationship and behavior that leads to procreation and that demands the complementarity of the sexes even if that behavior does not yield the desired or possible outcome. He argues that such couples can still model families even if they are incomplete and that allowing them to marry does not alter the definition of marriage whatsoever, it just admits that in some cases the ultimate function will not be fulfilled. The consequences of altering it for homosexual couples, he believes, are more significant.
It also is a different matter to argue that one group (heterosexuals who are unable or unwilling to procreate) are more or less similarly situated than homosexual couples who are unable. We also, of course, have the possibility of procreation in one case, regardless of desire, but not in the other.
Regardless, I am not sure I find it all that convincing.
I would prefer to do away with marriage as fundamental right given the inherently elastic nature of the concept since it has no textual justification. I think it is ultimately a state function in our system of government that the federal government has very few reasons to touch, not unlike abortion or homosexual conduct.
Thoughts?
Sam
April 11, 2013
Dr. Smith,
If your argument is then that Marriage Equality is not a fundamental right then can heterosexual marriage be a fundamental right? You cite John Eastman’s quote – regarding heterosexual marriage is a fundamental right but equal marriage is not – is itself an admission that marriage is a fundamental right and the Court’s analysis then will presume it to be a fundamental right. Surely, the Court could agree with Eastman, but none the less, this triggers the high burden of strict scrutiny. But then the obvious “equal protection” under the law is triggered because we have two separate entities that don’t receive the same protections but are, de facto, the same thing – which then leads to a strict scrutiny analysis, (circular yes, but relevant) and that is most presumably unconstitutional.
But more troublesome is if something then, is not a fundamental right, that right can be abrogated, expanded, or changed based on a rational basis test. By the whims of government and of man (which I assume you deplore). Which leads us back to equal marriage being an abrogation or expansion of this non-fundamental right and should survive an intermediary or rational scrutiny test, but that works both way.
But more shockingly, and for the same of the same slippery slope fallacy of many arguments against equal marriage (i.e., what’s stopping a man from marrying a boy, animal etc) which I know is a base argument and one that you yourself haven’t fallen into (thank you for that), is that by not assuming that marriage is a fundamental right is then open to abrogation by the government on heterosexual marriage.
For example: if marriage is not a fundamental right, then you must assume and presume, that the governments role in regulating marriage then is equally constitutional. Such as, a minimum IQ for marriage and children, or a pre-subscribed number of children allowed per family. You would, as I am, find this appalling and beyond any enumerated or unenumerated power of the government, yet the application of your analysis would show that it would be constitutional.
Marriage, both heterosexual and homosexual, must be subject to equal scrutiny under the law, otherwise neither receives equal protection under the law. Therefore, are you still an proponent that marriage is not a fundamental right?
Ryouji
November 11, 2013
I couldn’t read this post fast enguoh. I just turned 32 when I found out that the baby I was carrying had Down syndrome. My husband and I also never wanted to know the sex (we did not find out with our firstborn either; a girl) but once the doctor delivered the results of our amnio, it was the first question I blurted out. We were having a boy and we were so excited about that. But completely devastated at the results and I too, am not proud of the tears I shed in the two days following the news. We knew we would welcome and love any child (we agreed to an amnio only to help us prepare in the event of) but the fear and worry hit hard and all I could do was cry and then cry even harder because I was crying. I mean, really, this was not the end of the world so why couldn’t I get a handle on it? I did, eventually, and we are now 6 months into our journey. What I can tell you though, is from the moment our son was born, there was love and acceptance waiting for him. Deedah and this blog have been a huge inspiration for our family and I can only hope that our daughter and son have a relationship similar to Charlotte and Jonathan.