E.
Fundamental right to marry.
Under the Due Process Clause, courts apply more muscular review—“strict,” “rigorous,” usually unforgiving, scrutiny—to laws that impair “fundamental” rights. In considering the claimants’ arguments that they have a fundamental right to marry each other, we must keep in mind that something can be fundamentally important without being a fundamental right under the Constitution. Otherwise, state regulations of many deeply important subjects—from education to healthcare to living conditions to decisions about when to die— would be subject to unforgiving review. They are not.
See
San Antonio Indep.
Sch. Dist. v. Rodriguez
, 411 U.S. 1, 35 (1973) (public education);
Maher v. Roe
, 432 U.S. 464, 469 (1977) (healthcare);
Lindsey v. Normet
, 405 U.S. 56, 73–74 (1972) (housing);
Glucksberg
, 521 U.S. at 728 (right to die). Instead, the question is whether our nation has treated the right as fundamental and therefore worthy of protection under substantive due process. More precisely, the test is whether the right is “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.”
Glucksberg
, 521 U.S. at 721 (internal citations omitted). That requirement often is met by placing the right in the Constitution, most obviously in (most of) the guarantees in the Bill of Rights.
See id
. at 720.
But the right to marry in general, and the right to gay marriage in particular, nowhere appear in the Constitution. That route for recognizing a fundamental right to same-sex marriage does not exist. That leaves the other option—that, even though a proposed right to same-sex marriage does not appear in the Constitution, it turns on bedrock assumptions about liberty. This too does not work. The first state high court to redefine marriage to include gay couples did not do so until 2003 in
Goodridge
. Matters do not change because
Loving v. Virginia
, 388 U.S. 1 (1967), held that “marriage” amounts to a fundamental right. When the Court decided
Loving
, “marriage between
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Page 29 a man and a woman
no doubt [was] thought of . . . as essential to the very definition of that term.”
Windsor
, 133 S. Ct. at 2689. In referring to “marriage” rather than “opposite-sex marriage,”
Loving
confirmed only that “opposite-sex marriage” would have been considered redundant, not that marriage included same-sex couples.
Loving
did not change the definition. That is why the Court said marriage is “fundamental to our very existence and survival,” 388 U.S. at 12, a reference to the procreative definition of marriage. Had a gay African-American male and a gay Caucasian male been denied a marriage license in Virginia in 1968, would the Supreme Court have held that Virginia had violated the Fourteenth Amendment? No one to our knowledge thinks so, and no Justice to our knowledge has ever said so. The denial of the license would have turned not on the races of the applicants but on a request to change the definition of marriage. Had
Loving
meant something more when it pronounced marriage a fundamental right, how could the Court hold in
Baker
five years later that gay marriage does not even raise a substantial federal question?
Loving
addressed, and rightly corrected, an unconstitutional eligibility requirement for marriage; it did not create a new definition of marriage.