Marriage, a basic civil right?
(via HotAir.com)
Mr. Orson argues that marriage is "one of the most fundamental rights that we have as Americans under our Constitution":
The United States Supreme Court has repeatedly held that marriage is one of the most fundamental rights that we have as Americans under our Constitution. It is an expression of our desire to create a social partnership, to live and share life’s joys and burdens with the person we love, and to form a lasting bond and a social identity. The Supreme Court has said that marriage is a part of the Constitution’s protections of liberty, privacy, freedom of association, and spiritual identification. In short, the right to marry helps us to define ourselves and our place in a community.
Unfortunately, I am not a constitutional scholar, so all I can try to find out exactly what he meant (because Mr. Olson does not cite actual court cases) is to Google "united states supreme court marriage", which yields an Wikipedia article for Loving v. Virginia, in which the unanimous decision says,
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
So, is marriage a fundamental right? One aspect of it, yes. The decision makes it clear that right to marriage comes from our right to freedom of association, in particular, our right to be with someone we love. But this is a question that we have settled several years ago (although the debate may be ongoing, it's not the main issue here).
Perhaps an analogy would make the issues at hand clear. From the Wikipedia page for Loving v. Virginia:
These activists maintain that miscegenation laws are to interracial marriage, as sodomy laws are to homosexual rights and that sodomy laws were enacted in order to maintain traditional sex roles that have become part of American society.
Well, I agree! Just as anti-miscegenation laws were grave infringement on an individual's right to freedom of association, so are anti-sodomy laws. No one here is advocating for anti-sodomy laws. They have been unconstitutional for many years, and the laws that still remain on books in many states will never be enforced—or be struck down immediately.
That's as far as direct, reasonable comparison goes. Given that anti-same-sex-marriage proposals and laws are generally and usually not anti-same-sex-union (which is sufficient to satisfy requirements of freedom of association, and through which same economic benefits given to traditional marriage by the government can be given), I can't see exactly which widely agreed-upon fundamental rights they infringe upon.
Of course, it depends on whom you ask which rights are fundamental—libertarians trace every right back to property rights, but others may do differently—but here's one general rule of thumb: fundamental rights are given by God (or Nature, if you prefer) and no one else; states cannot grant them nor revoke them—they can only protect them. If something hinges on some sort of state recognition, i.e. an active role by the state, not a passive role of non-infringement, then by that fact alone, it cannot be a right. After all, if a right is truly fundamental, it cannot be dependent upon any human institution.
But in any case, I think the date of the decision might be instructive. This decision was handed down in 1967. The relevant civil rights act (the one outlawing segregation) was passed in 1964. This is an evidence in support of the adage that lasting social changes do not come from the Supreme Court. They come from the people themselves. The court battles of Prop. 8 are, at the very least for the present (even if you are a social liberal), the wrong way to go.