Responding to Differing Views:

The Objection from Due Process

Is same-sex marriage a fundamental human right?

Objection

The Fourteenth Amendment of the United States Constitution states, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States … nor deny to any person within its jurisdiction the equal protection of the laws.” The due process clause of the Fourteenth Amendment has been understood to require courts to apply strict scrutiny to laws that abridge fundamental human rights. Surely, the right to marry the person you love qualifies as a fundamental human right.

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Introduction

To conclude that the due process clause of Fourteenth Amendment prohibits states from defining marriage as between a man and a woman implies that individuals have a fundamental right to marry whomever they love. If this is true, then state marriage laws would be subject to strict scrutiny, rather than merely the rational basis test (as described in the Objection from Rational Basis). Strict scrutiny is a legal term, which means that legislatures must demonstrate that a law narrowly tailored to advance a compelling state interest (that is, the interests being advanced by the law must be compelling, and the state must demonstrate that the law does indeed advance those interests).

However, to apply a strict scrutiny test, the fundamental right for two men to marry must appear in the Constitution, or be “deeply rooted in this Nation’s history and tradition, [and] implicit in the concept of ordered liberty, [such that] neither liberty nor justice would exist if they were sacrificed.” For this reason, the Supreme Court very rarely recognizes a new fundamental right beyond those already recognized. Same-sex marriage is not a fundamental right that has been recognized by courts, and never has been.

Loving V. Virginia

Some argue that the Supreme Court’s decision in Loving v. Virginia establishes such a fundamental right for two men to marry — but this is mistaken. The Court ruled that marriage is a fundamental right because procreation is a fundamental right, and marriage is intrinsically connected with procreation. Far from establishing a fundamental right for two men to marry, the ruling simply reinforced the conjugal understanding of marriage. Sutton explains, “Loving addressed, and rightly corrected, an unconstitutional eligibility requirement for marriage; it did not create a new definition of marriage.”¹

Further, five years after Loving v. Virginia, two men challenged their state’s definition of marriage. When appealed to the Supreme Court, the Court declared that the issue of same-sex marriage did not even raise a substantial federal question, and declined to hear the case. This would not have happened were there — as a consequence of Loving v. Virginia, a fundamental right for two men to marry. Clearly, the justices on the court at the time did not feel that their ruling had established a fundamental right for two men to “marry.” Such, it was assumed by the court, was not an unconstitutional eligibility requirement, but a redefinition of the term itself.

Loving v. Virginia did not establish a fundamental right to marry whomever we please — it only established that bans on interracial marriage did not advance any legitimate state interest. We agree with that — such a racially-based eligibility requirement does not serve any public need. However, this does not mean that other eligibility requirements do not serve legitimate public interests. In fact, courts (including the Supreme Court) have ruled just the opposite.

Varying Eligibility Requirements

States have historically had broad leeway in determining eligibility requirements for marriage (and divorce). Some states have no-fault divorce laws, others have more stringent divorce laws. Federal and state governments forced religious communities to adopt monogamy as a marital norm, declaring that it advanced legitimate public interests to forbid multiple-partner marriages. These laws were upheld by the Supreme Court in Reynolds v. United States. States have had varying age-of-consent laws. Some states allow cousins to marry, while others do not.

None of these varying eligibility requirements have been subjected to the strict scrutiny test. If marriage to whomever we love is a fundamental right, why are laws forbidding cousins (who may very well be in love) to marry subject only to a rational basis test, instead of strict scrutiny? The Supreme Court subjected laws banning polygamy only to a rational basis test — but if marriage between two men is a fundamental right demanding strict scrutiny instead, would not marriage between three men, or one man and two women, be subject to strict scrutiny as well?

In short, demanding strict scrutiny (rather than a rational basis test) for laws defining marriage as being between a man and a woman contradicts a rich history of American jurisprudence, in which states have been given broad leeway in crafting complex and often contradicting eligibility requirements for marriage. As such, there may very well be a right to enter into a procreative relationship (based on Loving v. Virginia) — but there is not fundamental right to enter into a procreative relationship with whomever we please, nor is there a fundamental right having intrinsically non-procreative sexual relationships treated as marriage.

Conclusion

American legal tradition has never treated “marriage to whomever we love” as a fundamental human right. The Supreme Court has treated racial eligibility requirements as wrong, but this does not mean that there are no legitimate eligibility requirements (and the Supreme Court has confirmed this in prior and subsequent rulings). Age-of-consent laws, laws banning the marriage of cousins, and other requirements vary across jurisdictions. Further, even as the Supreme Court declared a right to marriage, it also simultaneously connected marriage to procreation — it assumed a conjugal understanding of marriage.

Because same-sex marriage is not a fundamental human right, courts should apply only a rational basis test instead of strict scrutiny to state marriage laws. Read more about that in the Objection from Rational Basis.

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