With respect to the second element in the balance—the importance of marriage licenses to homosexuals—Court precedent is again of little help. Even in the heterosexual context, the Supreme Court has never specifically ruled that marriage, standing alone, is a sufficiently fundamental right to elicit use of the strict scrutiny standard. However, the plausibility of such a holding is evident from a variety of cases. In the context of the Due Process Clause of the Fourteenth Amendment, the Court has stated that the right to marry is "one of the vital personal rights essential to the orderly pursuit of happiness by free men . . . one of the 'basic civil rights of man,' fundamental to our very existence." This fact was found to be crucial to the Court's conclusion that anti-miscegenation statutes deprive interracial couples of due process of law. The Court's plurality opinion in Griswold v. Connecticut again stressed the fundamental nature of the marriage relationship, noting that it draws special protection from a variety of constitutional safeguards, including the right of association. Most importantly, in Skinner v. Oklahoma, the progenitor of strict scrutiny cases, the Court held that the state's sterilization statute required use of that more stringent standard in an equal protection context because of the fundamentality of "[m]arriage and procreation."
However, even explicit judicial recognition of marriage as a fundamental interest to a heterosexual couple would not prove a fortiori that homosexuals have interests of a comparable magnitude in being permitted to obtain marriage licenses. Skinner is not alone among Supreme Court cases in linking marriage with procreation when considering the importance of those rights. It is unlikely, in light of Court dicta and of the evolving attitudes toward marriage in our society, that constitutional protections surrounding the institution of marriage would be made dependent on the ability or willingness to bear children. But it is still true that part of the importance of the marriage license to heterosexual couples derives from the social acceptance and legal protection which it guarantees for their natural children. Such considerations would not apply to a same-sex pair.
(Note, "The Legality of Homosexual Marriage," The Yale Law Journal 82 [January 1973]: 573-89, at 578-9 [footnotes omitted])
Note from KBJ: If a statute impinges on a fundamental right, it will be strictly scrutinized by the courts. For all practical purposes, this means that the statute will be struck down as unconstitutional. So it's important for those who wish to strike down traditional-marriage statutes to show that marriage is a fundamental right. When they attempt to do this, however, they cite cases in which traditional marriage (i.e., marriage between one man and one woman) is said to be a fundamental right. Can anyone say with a straight face that when the Supreme Court justices referred in Griswold to "the fundamental nature of the marriage relationship," they were thinking of two men or two women? The very idea is preposterous. Cases in which traditional marriage is said to be a fundamental right go no way toward showing that nontraditional marriage (e.g., homosexual "marriage") is a fundamental right. People who argue this way are playing with words.
Note 2 from KBJ: Let me formalize my point. The argument goes as follows:
1. Marriage is a fundamental right (or: marriage is of a fundamental nature).
2. Homosexual marriage is marriage.
Therefore,
3. Homosexual marriage is a fundamental right (or: homosexual marriage is of a fundamental nature).
This argument appears to be sound, but in fact it commits the fallacy of equivocation. The term "marriage" is ambiguous between traditional marriage and what I'll call generic marriage. If it means traditional marriage, then premise 1 is true but premise 2 is false. If it means generic marriage, then premise 2 is true but premise 1 is false. Either way, the argument has a false premise. Either way, therefore, the argument is unsound.
