A Constitutional Right to Marriage?

So what do we think about the district court ruling overturning California’s same-sex marriage ban? To my knowledge, this is the first time a court has asserted a federal constitutional right to marriage.

As a longtime supporter of getting government out of marriage licensing and of legal equality for same-sex and nonmonogamous relationships, I am nevertheless somewhat ambivalent about the decision, because a nationwide ban on same-sex marriage bans would undercut the meta-ideological argument for decentralization of policy-making on controversial moral issues: majorities in different jurisdictions could have their own policies, leaving more people content with the regime under which they live than they would be with a single nationwide rule. For the same reason, I would be ambivalent about a federal court overturning all state and local gun laws. Some human rights are so basic that there should be a minimum federal standard, but when it comes to same-sex relationships, civil unions afford exactly the same rights without the terminology.


6 thoughts on “A Constitutional Right to Marriage?

  1. Civil Unions do not afford exactly the same rights; to pick one example, civilly unioned persons may not file joint income tax returns like a married couple.

  2. Honestly, since the word “marriage” is so contentious in non-government circles, I’d favor eliminating the term in law and shifting all existing marriages to civil unions, with the same set of rights for everyone in one.

    I don’t think it’s going to happen; that contentiousness is often paired with tremendous entitlement. Still, when people make theological arguments about marriage, the logical conclusion is to remove the theological element from the law, replace it with a neutral idea and let the government grant rights to any set of people who wish to bind their lives together — which in my opinion should be extended be they romantically entwined or just roommates looking for tax and insurance boons.

  3. As it stands, though, Bill is right: civil unions in their current form (in any state I’m aware of that has them, anyway) are inadequate even to the dubious task of maintaining a “separate but equal” status.

  4. Interesting. Now, wouldn’t federal tax treatment still be unfair to same-sex married couples because of DOMA? I honestly don’t know. Part of the rationale behind the judge’s decision was precisely that same-sex marriage represented merely a minor, terminological change in the law, but a valuable one because of its emotional symbolism (pp. 80-83 of the decision).

  5. Err.. Loving v. Virginia found a federal constitutional right to marriage. “[T]he decision to marry is a fundamental right under Zablocki v. Redhail, 434 U.S. 374 (1978), and Loving v. Virginia, 388 U.S. 1 (1967).” Turner v. Safley, 482 U.S. 78, 95 (1987).

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