King: Same-Sex Marriage — a Fundamental Right?

April 24, 2013

by Stephen M. King, Ph.D.

The recent U.S. Supreme Court arguments on same-sex marriage — e.g., the federal government’s Defense of Marriage Act and California’s Proposition 8  — have generated intense interest and speculation in what already was a controversial cultural issue.

Even after listening to the Court’s justices ask questions of the lead attorneys, experienced Court watchers were unsure how it would decide when it rules on the cases in late June. What is certain, though, is that the Court’s decision will not fully resolve the issue, including whether or not the government should be involved in sanctioning marriage whatsoever.

Since 1989, when Denmark became the first country to legalize same-sex marriage, popularity for homosexual legal rights, including the right to marry, has increased. According to The Economist magazine, same-sex marriage is legal in 13 countries, with New Zealand as the most recent. Yet even as Britain decriminalized homosexuality in marriage in 1967, and our Supreme Court struck down all 14 state sodomy laws in 2003 (Lawrence vs. Texas), there is strong opposition around the world, especially in 78 African and Islamic countries where homosexuality and de facto same-sex marriages are a crime.

Still, our laws tend to change as public attitudes shift. Since 2000, when Massachusetts became the first state to recognize same-sex marriage (the first ceremony taking place in 2004), eight additional states and the District of Columbia have legalized same-sex marriage.

Indiana is one state that is for a ban on same-sex marriage. Attorney General Greg Zoeller filed a brief with the Supreme Court supporting Indiana’s statute that disallows homosexual couples to legally marry.

Even so, despite strong opposition in the state toward legalizing same-sex marriage, the Indiana General Assembly pointedly decided to table any vote for a constitutional restriction until 2014. Recent polling numbers show that about 49 percent of Americans surveyed support the right of same-sex couples to marry. Differences are striking when controlled for age: Over 70 percent of the Millennial Generation favors same-sex marriage, compared with 38 percent of the Baby Boom Generation. Still, these numbers show distinct increases in favorability since 2003.

Despite this increased favorability for same-sex marriage, 41 states disallow same-sex marriage, including Indiana, either constitutionally (30 states) or statutorily (11 states). The issue is not going to be easily resolved, or wholeheartedly accepted, whatever the Court’s decision if one can judge from the reaction of various groups and individuals who congregated outside the Supreme Court building to vocalize their opposition to or support of same-sex marriage during the Court’s hearings last month.

There is a growing opposition of government sanction of any type of marriage, whether traditional or same-sex. The opposition is largely libertarian and focuses on privatization. Removing government from the equation will solve the problem. Others argue the issue should be devolved to the states with little to no federal government intervention.

Let’s look at the privatization question. It takes two different positions: 1) Remove government from strictly regulating marriage, whether at the federal or state level, thus allowing any couple to marry for any reason, or treat marriage as any other contract, and 2) allow government to enforce the terms of the contract, just as it does in any business relationship.

Proponents of privatization contend that it reduces government regulation and rules. In addition, it resolves the same-sex marriage dilemma by placing such relationships on the same level as traditional marriages without requiring government support. Others argue for using different nomenclature: civil unions for homosexual couples and marriage for heterosexual couples, but with each benefiting from all government benefits.

Supposedly this is a win-win situation, but is it?

A 2002 law-review essay supports the Indiana position in concept and specifically argues against the privatization thesis. Two Regent University scholars, Lynne Kohm and Mark Yarhouse, contend that the constitutional fundamental-rights doctrine does not apply to marriage of same-sex couples. In order for the doctrine to apply to any group or issue, whether it is the right to bear arms or marry, the participants must meet basic requirements. To marry, for example, the minimum requirements are 1) “the parties be of the minimum age, 2) marry only one person at a time, 3) are unrelated by blood or marriage, and 4) are of different sexes.”

In Loving vs. Virginia (1967), the Supreme Court ruled that two people of different races could not be denied the right to marry. When homosexual couples use this case to support their position, Kohm and Yarhouse contend that their argument is flawed if examined in light of the minimum requirements of the fundamental-rights doctrine.

Specifically, they argue that to constitute a “fundamental constitutional right,” two factors are necessary:  The right must be rooted in the nation’s history and tradition, and it must be clear and distinct in the nation’s legal history. Therefore, according to the authors, homosexual couples are denied the fundamental right to marry because they do not meet these cultural, historical and legal obligations.

In summary, government should remain in the business of sanctioning traditional marriage, not solely because two people love each other, but primarily because of the historical, cultural and legal nature of traditional marriage itself.

Stephen M. King, Ph.D., an adjunct scholar of the Indiana Policy Review Foundation, teaches political science at Taylor University.



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