First, I never said fundamental rights doctrine was the sole basis, or any basis, for the Windsor decision. In fact, I said something else entirely was the basis for the Windsor decision.
You are missing the point that “what is and what is not essential to the right of marriage” is not relevant. For same sex marriage to be a fundamental right requires a demonstration not just mere marriage is a fundamental right because they are not talking about marriage in general but same sex marriage, marriage between two people of the same sex is what is being asked to be a fundamental right.
However, I have few doubts the fundamental rights doctrine will prove to be an impediment to J. Kennedy should he write the majority opinion recognizing a right to marry for some sex couples.
Respectfully, that just doesn’t make any sense, but I can’t quite tell what part you’re not understanding.
Let’s say California passes a law that says that women who wear pants are not allowed to marry men who shave their chest hair. Those people sue, saying they have a fundamental right to marriage. The state’s defense is that, historically, marriages did not involve women who wear pants marrying men who shave their chest hair. What is your analysis of the state’s argument?
The reason it’s a bad argument is that those facts have nothing to do with the deeply rooted right of marriage. And the question is whether opposite gender is like those factors or not.
I understand your argument, but respectfully, it doesn’t make any sense from a fundamental rights doctrine perspective.
The answer is rather easy. People of the opposite sex, in this nation, have enjoyed the freedom and liberty to marry any member of the opposite sex. The freedom and liberty to marry someone of the opposite sex has a long tradition and is deeply rooted in the nation’s history. As a result, the state of California has created an impediment to this right, a right in existence since the nation’s inception. Consequently, the Court will apply strict scrutiny, find the state’s compelling interest for burdening the right of heterosexual couples to marry to not be compelling and render the law unconstitutional.
Opposite gender is not like your example because, unlike your example of people of the opposite sex wanting to marry each other and such activity is rooted in the nation’s history and tradition, people of the same gender getting married in this country is not deeply rooted in the nation’s history or tradition.
However, as I explained to you before, I hate the fundamental rights doctrine and think there is an easier way to protect unenumerated rights.
Your logic has gone circular again. Consider this analogue: “people in this nation have enjoyed the freedom and liberty to marry other people of their choosing.” It’s true, yes? Therefore, a ban on SSM infringes on a fundamental right and must meet strict scrutiny.
This is exactly and precisely the conservative response. Such a right didn’t exist until 1967 and the Court conjured up the right.
However, my answer was constructed within the context of the fundamental rights doctrine and based on the reasoning of the fundamental rights doctrine, one can reasonably espouse an argument of what is or isn’t a fundamental right.
According to you “my logic has gone circular again.” My reasoning is not circular. My premise is not my conclusion restated.
Now, it is not true “people in this nation have enjoyed the freedom and liberty to marry other people of their choosing.” Some historical examples contravening this general statement are laws prohibiting a father from marrying his daughter, son marrying his mother, certain relatives marrying each other, children marrying children, children marrying adults, adults marrying children, and people of the same sex marrying each other. A correct and accurate statement is people of the opposite sex have enjoyed the freedom to marry people of their choosing, when people are of the opposite sex, not related, and of a certain age.
When you frame the question that broadly, one strains to find something that is NOT a fundamental right deeply rooted in history. The question must be specific and not be overinclusive or else absurdity results.
Let’s say that we can agree that it is deeply rooted in our history that one can “express his sexual desires to a person he chooses.” Seems reasonable. Sounds like Lawrence. But if I am waving my dick at grade school kids on the playground, such flowery statements can’t apply to my specific act, and they obviously don’t. So we reform the question and include such things like “in private” and “of age” and “with consent” to get the proper question.
Likewise, the question cannot be so ridiculously specific so as to be meaningless. No SCOTUS case has ever held that RNATB has a right to free speech, so “RNATB free speech” is not deeply rooted in history. There must be a relevant connection with the details and the gender of the parties is obviously historically relevant with regard to marriage.
Opposite sex marriage is deeply rooted in our nation’s history. SSM is not. Throughout history two people of the same gender were absolutely incapable of marriage by any definition and was not contemplated by the Loving Court.
At the risk of falling into a trap, I’ll say sure. Having a no-fault divorce is irrelevant to a future right to marry, even if a no-fault divorce itself isn’t a fundamental right.
Well, ok, but you’re aware that this hasn’t always been how marriage works? So why is it suddenly OK because of our Twenty-First Century sensibilities?
Or, to choose another example, marriage without coverture. Is marriage without coverture a fundamental right?
The point is that it is not sufficient to point to the historical requirements for marriage and say that all of them are essential to the constitutional right. Obviously, some of them were not essential (like coverture, racial identity, or lack of prior non-church divorce).
Obviously, there are arguments for why opposite gender is essential while those other things are not. But the point is that it takes argument, and reasonable people might disagree. It isn’t just a given.
I’m not accusing anyone of being unreasonable or arguing in bad faith. I’m just pointing out the Pandora’s Box of “fundamental rights” that can be found with framing the question in such a broad manner.
Things like coverture and race were always statutory constructs that the state placed upon marriage, but was never an essential element to the union. That the couple be of the opposite sex was simply assumed until the latter part of the 20th century. Most states didn’t have laws that specified that the couple had to be of opposite sexes because it was so ingrained in public belief.
In the face of those facts, it approaches absurdity to say that SSM was something so fundamental and so rooted in history that to deny it is a violation of substantive due process. The same way with incestuous marriage. Do I have a fundamental right to marry my daughter (assuming we are both of age and incapable of procreation)? Do I have a fundamental right to marry two women? A shovel?
You may say that a shovel has no capacity to enter into a contract, but isn’t that a burden the state has placed as well? Couldn’t a court recognize the right of a shovel to marry?
I’m strongly pro-SSM, but it’s hard to read Loving (wiki) (full text) as anything other than an equal protection case. Which is to say, although it speaks of fundamental right as an alternative holding, this holding is limited by the text. The entirety of Part II of the opinion reads as follows:
If you follow the full text link above, you’ll see this is everything Loving had to say on the fundamental rights point. By my reading, it’s just the equal protection argument restated. YMMV.
Speaking for myself, I think the “deeply rooted” fundamental rights test is stupid in the first place - but if we are going to use it, let us do so logically.
The fact that a court clerk would not have issued a marriage license is not the same as a prohibition that actually exists. On the other hand, polygamous, incestuous and miscegenative marriages have been prohibited in explicitly stated expressions of policy (at common law, in the statutes, and even in constitutional amendments.)