Same-Sex Marriage, II

• Author: Lynn D. Wardle
• Pages: 2308-2309

Page 2308

Constitutional claims in support of same-sex MARRIAGE involve two dominant themes: (1) that the Constitution protects as a FUNDAMENTAL RIGHT the choice to marry another consenting adult of the same sex and (2) that refusal to permit same-sex couples to marry denies them the EQUAL PROTECTION OF THE LAWS. Both claims fail existing standards of federal constitutional analysis, but state constitutional provisions may be interpreted differently.

The fundamental right argument for same-sex marriage posits the existence of unwritten constitutional rights such as the RIGHT OF PRIVACY, orof FREEDOM OF ASSOCIATION, or a right to marry. Laws that impinge upon fundamental rights are subject to heightened judicial scrutiny, and may only be sustained if necessary and narrowly tailored to effectuate a COMPELLING STATE INTEREST. If same-sex marriage is not a fundamental right, the LEGISLATION will be reviewed (and presumably sustained) under a lower standard of analysis that is more deferential to legislative discretion. The test for whether a practice or relationship not specifically identified in the Constitution is protected as "fundamental" is whether it is "deeply rooted in this Nation's history and tradition," or "implicit in the concept of ordered liberty." Clearly, same-sex relations are not so rooted or so essential. Thus, same-sex marriage is not a fundamental right.

Although many decisions have recognized that the right to marry is a fundamental constitutional interest, all of them have involved traditional male?female marriage, which is deeply rooted in the traditions and history of our people. In BOWERS V. HARDWICK (1986), the Supreme Court emphasized that there is "[n]o connection between family, marriage, or procreation on the one hand and homosexual activity on the other.?" Marriage receives special protection because according to MEYER V. NEBRASKA (1923), it is the foundation of the traditional home and family, and because marriage is linked to procreation. Same-sex marriage is distinguishable in both respects.

Page 2309

From the perspective of the basic social purposes of legal marriage recognition, traditional male?female unions and same-sex unions are not equivalent. In terms of promoting safe sexual relations, procreation, child rearing, cross-gender integration, complementarity, and fostering public virtue, for example, same-sex unions do not contribute to the public interest in ways comparable to the...