Monthly Archives: March 2015

On Same-Sex Marriage Part 2: Marry Whoever You Want?

I’m currently swamped with law school. I have another research paper coming up and midterms. I also have have the Bar to prepare for and final exams will be coming up quicker than I’d like. I don’t want to neglect my blog so I decided to post a legal paper I wrote for class last year. I edited and formatted it for this blog. I also took out a good chunk of the more technical discussions of constitutional law and rewrote certain sections to make more sense for those who don’t speak legalese. Enjoy. I’ll be around for discussion and comments. I’m also ready for the inevitable charges of homophobia and bigotry; wouldn’t miss it for the world.

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What if I love my little sister?

Even if you love your 8 year old sister?

The idea of the right to marry started back in 1877 where the Supreme Court (SCOTUS) wrote that states can regulate marriage but this doesn’t mean that states give people the right to marriage[1]. Later, the Supreme described marriage as “one of the basic civil rights of man… fundamental to the very existence and survival of the race.”[2] It was in 1967 where the court actually said that that marriage is a fundamental right and “essential to the orderly pursuit of happiness by free men”[3]. Though legal scholars have criticized certain statements in the case, we won’t discuss those criticisms here [4].

What can we gather from these statements? First, The SCOTUS has plainly stated that people have the right to marry. The SCOTUS also sees this right as extremely important as well. However, there are some problems. First, a “right to marry” is vague. What exactly did the court mean when it said we have a right to marry? It can’t mean we are allowed to marry whoever we want. We still have incest laws that forbid us from marrying close relatives. We also have minimum age requirements that forbid us from marrying below a certain age. Nobody is complaining about these laws; well, most aren’t.

We also have a second problem. Even though we have this fundamental right to marry, a right so important that it’s necessary for our existence, states can still regulate this right and how we exercise it. It’s almost as if there is a contradiction. On one hand, the SCOTUS says marriage is a fundamental right but, on the other hand, it also says that marriage can be regulated. Legal scholars have highlighted this problem as well and have even presented cases where the SCOTUS did not treat marriage as a fundamental right [5] [6]. This inconsistency shows that even the SCOTUS has trouble deciding what the limits of marriage are. Despite what many people think, it’s not as simple as just letting people marry whoever they want.

[1] Meister v. Moore, 96 U.S. 76, 78 (1877)

[2] Skinner v. Oklahoma, 316, U.S. 535, 541 (1942)

[3] Loving v. Virginia, 388 U.S. 1 (1967)

[4] See the article by Joseph Pull if you want to dive into the legal minutiae of such a right. “Questioning the Fundamental Right to Mary” 90 Marq. L. Rev. 26

[5] William Hohengarten, note, Same-Sex Marriage and the Right of Privacy, 103 Yale L.J. 1495, 1505 (1994)

[6] Joseph Pull, “Questioning the Fundamental Right to Mary” 90 Marq. L. Rev 42-45. In regards to the Court upholding the criminalization of polygamy, Pull notes that “it would be odd if a fundamental right to marry could be overridden by a mere statute limiting marriages to one at a time; no law restricting authors writing more than one book at a time… would be considered as complying with First amendment protections.” In regards to the Supreme Court invalidating a marriage due to an improper intent, Pull writes that “if a marriage is a fundamental right, immigration laws should not be able to impose subjective intent conditions upon it.”