Marriage and the Constitution

By Ken Klukowski and Ken Blackwell

The federal same-sex marriage decision out of California sets into motion a sequence of events that will result in a Supreme Court earthquake two years from now. The Supreme Court can either vindicate traditional marriage, or forever redefine the most basic unit of human civilization.

Sounds melodramatic, but it’s true.

On August 4, the U.S. District Court for the Northern District of California decided Perry v. Schwarzenegger. The voters of California amended the California Constitution to say marriage in California is between a man and a woman. In Perry, the issue was whether there is a federal constitutional right to same-sex marriage, such that any state law, federal law, or state constitution to the contrary is unconstitutional.

The U.S. Supreme Court has held that marriage is a fundamental right in the U.S. Constitution. In his ruling, Chief Judge Vaughn Walker held that the California Constitution violates that federal right by not allowing gays to marry each other.

Although not explicitly mentioned in the Constitution, marriage is an implied fundamental right. The test for whether a right is a fundamental right is whether it is rooted in the history and tradition of the American people, and essential to an Anglo-American scheme of ordered liberty.

No one in this lawsuit disputes that the right to marry fits those two criteria of being rooted in our history and essential to an American concept of liberty. So the question is whether same-sex marriage also meets that test.

The judge’s mistake ultimately comes from a false choice he sets up as the legal issue. He writes, “The question presented here is whether plaintiffs seek to exercise the fundamental right to marry; or, because they are couples of the same sex, whether they seek recognition of a new right.”

That’s not the issue. The issue is whether a person has the right to redefine marriage. The district court tried to deal with that issue by declaring its own definition of marriage: “Marriage requires two parties to give their free consent to form a relationship, which then forms the foundation of a household.”

One of the problems with that definition is the word “two.” Why only two? Dozens of countries across the world practice polygamy, where a man can have more than one wife. Islam, for example, permits a man to have four wives, and that’s the law in Muslim nations. Why does the court insist on two?

There are other problems as well. In many countries, a person can be married at an age that is considered too young in America to give consent. In others, consent is not required regardless of age; many women are forced to marry against their wishes. In some cultures, people can marry close relatives, and in a few over time, even brothers and sisters.

None of that is protected by our Constitution. American laws against polygamy, child-marriage and incest do not run afoul of the Constitution.