“The decision to marry is a fundamental right”

Marriage equality comes to Utah.

After pouring tens of millions into the Prop 8 campaign in California, organizing phone banks, and so on…

The decision in federal court declaring the Utah state constitution’s ban on same sex marriage a violation of the U.S. Constitution set off a cacophony of hysteria in conservative circles. Numerous op-ed pieces in conservative blogs and publications made the outraged assertion that the “activist judge” had “fabricated a constitutional right to marry.”

The problem is that it isn’t fabricated. Since as far back as the year 1888, the U.S. Supreme Court has repeatedly declared that the right to marry is a fundamental human right. In the 1888 case the court declared it “the most important relation in life.” In 1923 they declared it one of the fundamental rights protected by the Due Process Clause. In 1942 they declared marriage one of the most basic and fundamental civil rights covered under the Equal Protection Clause. In 1965 they declared the right to marry and make decisions about having a family as part of a fundamental right of privacy that was older than the constitution, that the right to privacy was implied by several parts of the Bill of Rights, most strongly in the Ninth and Fourteenth amendments.

Most famously in 1967, in the case that struck down the few remaining laws against interracial marriage, the court unanimously ruled that “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”

In 1974 the court declared “This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause” when it struck down laws that prohibited pregnant women from working as teachers.

In 1977 in a couple of cases involving laws about who was allowed to live together, the court declared that the choice of who to live with, who to marry, and who to raise children with were fundamental rights which the government could not interfere in without justification that would pass careful judicial review.

In 1978 the court found that “the right to marry is of fundamental importance for all individuals” in the course of declaring that a state must show that any law restricting the right furthers an important government interest in a way that is substantially related to that interest.

In 1987 the court reaffirmed that “the decision to marry is a fundamental right” and that it was so fundamental that even the most violent and dangerous of convicted criminals must be allowed to marry even while they were in prison regardless of whether they would ever be allowed to consumate such marriages.

In 1992 the court included marriage and the choice of whether and who to raise children with as “central to personal dignity and autonomy” and “central to the liberty protected by the Fourteenth Amendment.”

In 1996 the court held that “choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as ‘of basic importance in our society,’ rights sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.”

Most tellingly, in 2003 when striking down state sodomy laws, the court held that “our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, and education. … Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”

That last one certainly seems to imply that gay couples ought to be able to get married, if they wish. And it was the ruling that set off the flurry of state ballot measures in 2004 to place gay marriage bans into several state constitutions, including Utah’s. These bans were not spontaneous statements from the people about individual rights. They were, in fact, a carefully orchestrated strategy by extremely cynical persons in the Republican party. The primary goal was to drive conservative leaning voters to the polls in order to re-elect George W. Bush.

And calling it “extremely cynical” is putting it mildly. The guy whose idea it was, then-chairman of the Republican National Committee, was a closeted gay man, who has since tried to rehabilitate his image by becoming a pro-marriage equality advocate (personally, I believe he needs to apologize to the parents of every single gay kid who committed suicide or attempted suicide during the years he was active as a Republican politician, and then he should go be a religious hermit somewhere).

But I digress…

The bottom line is, it is settled law, going back 125 years, that the Constitution protects the right to marry and to choose who to marry. It isn’t a new idea, or a radical fabrication. Just as some of the people who agreed the marriage was a basic right used to also think that the word “marriage” only applied when people belonged to the same church, and some who agreed it was a basic right thought the word only applied when both people were members of the same ethnic group, there are people who believe that you should have to right to marry, but only if the two people involved are opposite gender.

Despite the sincerely held beliefs of a minority of people (and it is now a minority of U.S. citizens) that people of the same sex should not be allowed to marry, those people have failed, again and again and again, to show a single logical or verifiable reason that that should be the case. Even Supreme Court Justice Antonin Scalia, who opposes same sex marriage with a passion that borders on the disturbing, has admitted that the only reason to bar it is because some folks believe it is wrong.

And just because some people think some other people are icky is not a compelling or even substantial reason to deny them basic rights.

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About fontfolly

I've loved reading for as long as I can remember. I write fantasy, science fiction, mystery, and nonfiction. I publish an anthropomorphic sci-fi/space opera literary fanzine. I attend and work on the staff for several anthropormorphics, anime, and science fiction conventions. I live in Seattle with my wonderful husband, still completely amazed that he puts up with me at all.

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