No fundamental right to same-sex marriage

Chris Gacek is the Senior Fellow, Regulatory Affairs at Family Research Council. This article appeared in The Cincinnati Inquirer on August 3, 2014.

Same-sex marriage is a novel concept that is not as old as Google or Facebook, yet it is leading some courts to re-imagine the rights endowed by the U.S. Constitution and re-write human history.

The U.S. Court of Appeals for the Sixth Circuit will hear cases in Cincinnati this week from Tennessee, Kentucky, Ohio and Michigan. Each of those states had defined marriage as the union of one man and woman, and each legal definition was declared unconstitutional by federal district courts because they did not allow persons of the same sex to marry each other.

Efforts to redefine marriage to embrace same-sex arrangements rely in large part on the due-process clause of the 14th Amendment to the U.S. Constitution. Advocates argue it requires marriage be expanded to include same-sex couples. Only the federal district court in Ohio accepted this line of reasoning and concluded that a "fundamental right" of the same-sex couples to marry had been denied. This was not the holding in the Supreme Court's Windsor v. United States decision, however, and a quick review of "due process" law teaches that such reasoning falls flat.

The due process clause requires that no state shall "deprive any person of life, liberty or property, without due process of law." The Supreme Court has ruled that the clause includes not just procedural protections, but a substantive component that protects "certain fundamental rights and liberty interests." The Court has stated its reluctance to increase the list of such rights and interests given the clause's open-ended language. Still, there is no doubt that a fundamental right to marry is recognized by the Supreme Court.

To decide whether a right is "fundamental" under the due process clause, the Supreme Court requires two things. The first is a carefully worded description of the "asserted fundamental liberty interest." Second, such rights must be "deeply rooted in this Nation's history and tradition." The right must also be "so rooted in the traditions and conscience of our people" that "neither liberty nor justice would exist if [it was] sacrificed."

A loose definition like "being able to marry the person of one's choice" is too broad and could include the union of multiple partners and other arrangements. In fact, the plaintiffs in these cases are already permitted to marry: they can marry persons of the opposite sex as can we all. But they want the courts to legitimize a new social-sexual arrangement by declaring a "right" to same-sex marriage.

The next step for the courts requires an inquiry into whether the claimed right to same-sex marriage is deeply rooted in this nation's history and traditions.

No state contemplated redefining marriage until Hawaii in the mid-1990s, and the first American marriages of this kind took place in Massachusetts in 2004. It seems fair to conclude that any right to same-sex marriage is not deeply rooted in this country's history and traditions, and thus no such fundamental right exists.

To be clear, the fact that the law does not support allowing courts to change the definition of marriage does not prevent legislatures from enacting statutes that allow for such unions. It merely prevents the due-process clause from being used to thwart citizens' policy preferences. The Sixth Circuit needs to follow the law and reject the argument that there is a "fundamental" right to same-sex marriage.