The parties to this action certainly do not dispute that the Due Process
Clause of the Fourteenth Amendment guarantees individuals the fundamental right
to marry. They stridently part company, however, over whether the fundamental
right to marry encompasses the right to marry a person of the same sex. Plaintiffs
contend that the fundamental right to marry belongs to the individual and protects
each individual’s choice of whom to marry. In stark contrast, Defendants contend
that, because “[t]he United States Supreme Court has never recognized that the
fundamental right to marry includes the right to marry a person of one’s choice,”
the Marriage Laws do not violate Plaintiffs’ due process rights. (Doc. 117, p. 20)
(emphasis in original). Against this jurisprudential backdrop, and in view of the
parties’ polarized positions, we are tasked to consider and address the scope of the
fundamental right to marry.
If the fundamental right to marry doesn’t already include the right to marry a person of one’s choice, then it ought to, just as it also ought to include a right not to marry a person not of one’s choice.
While the Supreme Court has cautioned that the Due Process Clause only
“protects those fundamental rights and liberties which are, objectively, deeply
rooted in this Nation’s history and tradition, . . . and implicit in the concept of
ordered liberty,” Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (internal
citation and quotation marks ommitted), the Supreme Court has clarified the
boundaries of the fundamental right to marry when tested by new societal norms.
Perhaps the most classic example of such clarification is Loving v. Virginia, 388
U.S. 1 (1967). In Loving, the Supreme Court struck down Virginia’s laws against
interracial marriage, finding the state’s anti-miscegenation statutes violative of
both the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
The Supreme Court characterized the right to marry as one that “resides with the
individual and cannot be infringed by the State.” Id. at 12
But people now balk at applying that to the sex of the person chosen, because that seems so much more basic. Well get over it. “Seems” is the operative word. “Seems” can be changed. Race seemed just as basic to many people at the time of Loving, and “seemed” can be changed.
In a retrospective discussion of Loving, the Supreme Court reaffirmed that
its decision to find Virginia’s anti-miscegenation statutes unconstitutional was
entirely correct, despite a long historical tradition in this nation of prohibiting
interracial couples from marrying. See Casey, 505 U.S. at 847-848; see also
Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J., dissenting) (“[N]either
history nor tradition could save a law prohibiting miscegenation from
constitutional attack.”), overruled by Lawrence, 478 U.S. 186; Perry v.
Schwarzenegger, 704 F. Supp. 2d 921, 992 (N.D. Cal. 2010) (“[T]he Court
recognized that race restrictions, despite their historical prevalence, stood in stark
contrast to the concepts of liberty and choice inherent in the right to marry.”).
Despite their historical prevalence, you see – yes it seemed that way for a long time, but we can get over it; what seems can change.
To be continued.