Is Marriage a Right?

full text opinion of case (pdf)

This case overturned the ban on interracial marriage in California

The court stated:

Marriage is thus something more than a civil contract subject to regulation by the state; it is a fundamental right of free men.

The right to marry is as fundamental as the right to send one’s child to a particular school or the right to have offspring. Indeed, “We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race.” (Skinner v. Oklahoma, supra, at p. 541.) Legislation infringing such rights must be based upon more than prejudice and must be free from oppressive discrimination to comply with the constitutional requirements of due process and equal protection of the laws. 

Since the right to marry is the right to join in marriage with the person of one’s choice, a statute that prohibits an individual from marrying a member of a race other than his own restricts the scope of his choice and thereby restricts his right to marry. It must therefore be determined whether the state can restrict that right on the basis of race alone without violating the equal protection of the laws clause of the United States Constitution.

The right to marry is the right of individuals, not of racial groups. The equal protection clause of the United States Constitution does not refer to rights of the Negro race, the Caucasian race, or any other race, but to the rights
of individuals. (State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 351 [59 S.Ct. 232, 83 L.Ed. 208]; McCabe v. Atchison, Topeka & Santa Fe Ry. Co., 235 U.S. 151, 161-162 [35 S.Ct. 69, 59 L.Ed. 169].)

The due process clause of the Fourteenth Amendment protects an area of personal liberty not yet wholly delimited.

“While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and, generally, to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” (Italics added; Meyer v. Nebraska, 262 U.S. 390, 399 [43 S.Ct. 625, 67 L.Ed. 1042].)

Text of the decision (pdf)

California supreme court review:

Accordingly, the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes, but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an
officially recognized family relationship that affords all of the significant legal
rights and obligations traditionally associated under state law with the institution of marriage, but under which the union of an opposite-sex couple is officially designated a “marriage” whereas the union of a same-sex couple is officially designated a “domestic partnership.”  The question we must address is whether, under these circumstances, the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.

First, we must determine the nature and scope of the “right to marry” — a
right that past cases establish as one of the fundamental constitutional rights
embodied in the California Constitution.  Although, as an historical matter, civil marriage and the rights associated with it traditionally have been afforded only to opposite-sex couples, this court’s landmark decision 60 years ago in Perez v.  Sharp (1948) 32 Cal.2d 7114 — which found that California’s statutory provisions prohibiting interracial marriages were inconsistent with the fundamental constitutional right to marry, notwithstanding the circumstance that statutory prohibitions on interracial marriage had existed since the founding of the state — makes clear that history alone is not invariably an appropriate guide for determining the meaning and scope of this fundamental constitutional guarantee. 
The decision in Perez, although rendered by a deeply divided court, is a judicial opinion whose legitimacy and constitutional soundness are by now universally recognized.

As discussed below, upon review of the numerous California decisions that
have examined the underlying bases and significance of the constitutional right to marry (and that illuminate why this right has been recognized as one of the basic, inalienable civil rights guaranteed to an individual by the California Constitution), we conclude that, under this state’s Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative
process.  These core substantive rights include, most fundamentally, the
opportunity of an individual to establish — with the person with whom the
individual has chosen to share his or her life — an officially recognized and
protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.  As past cases establish, the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own — and, if the couple chooses, to raise children within that family — constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society.  

...an individual’s sexual orientation — like a person’s race or gender — does not constitute a legitimate basis upon which to deny or withhold legal rights.  We therefore conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.

The United States Supreme Court initially discussed the constitutional right to marry as an aspect of the fundamental substantive “liberty” protected by the due process clause of the federal Constitution (see Meyer v. Nebraska (1923) 262 U.S. 390, 399), but thereafter in Griswold v. Connecticut (1965) 381 U.S. 479 (Griswold), the federal high court additionally identified the
right to marry as a component of a “right of privacy” protected by the federal
Constitution.  (Griswold, at p. 486.)  With California’s adoption in 1972 of a
constitutional amendment explicitly adding “privacy” to the “inalienable ights” of all Californians protected by article I, section 1 of the California Constitution — an amendment whose history demonstrates that it was intended, among other purposes, to encompass the federal constitutional right of privacy, “particularly as it developed beginning with Griswold v. Connecticut[, supra,] 381 U.S. 479” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 28) — the state constitutional right to marry, while presumably still embodied as a component of the liberty protected by the state due process clause,30 now also clearly falls within the reach of the constitutional protection afforded to an individual’s interest in personal autonomy by California’s explicit state constitutional privacy clause. 

Those are just a few excerpts.  I invite you all to read the entire decision since it's full of good stuff

text of decision

This is the Massachusetts decision stricking down the ban on gay marriage:

This court concluded that barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violated the Massachusetts Constitution in that such a marriage ban did not meet the rational basis test for either due process or equal protection, where the Commonwealth failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples.

The Massachusetts Constitution is, if anything, more protective of individual liberty and equality than the Federal Constitution; it may demand broader protection for fundamental rights; and it is less tolerant of government intrusion into the protected spheres of private life.

Barred access to the protections, benefits, and obligations of civil marriage, a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community's most rewarding and cherished institutions. That exclusion is incompatible with the constitutional principles of respect for individual autonomy and equality under law.

See DeMatteo v. DeMatteo, 436 Mass. 18 , 31 (2002) ("Marriage is not a mere contract between two parties but a legal status from which certain rights and obligations arise"); Smith v. Smith, 171 Mass. 404 , 409 (1898)

The benefits accessible only by way of a marriage license are enormous, touching nearly every aspect of life and death. The department states that "hundreds of statutes" are related to marriage and to marital benefits. With no attempt to be comprehensive, we note that some of the statutory benefits conferred by the Legislature on those who enter into civil marriage include, as to property: joint Massachusetts income tax filing (G. L. c. 62C, s. 6); tenancy by the entirety (a form of ownership that provides certain protections against creditors and allows for the automatic descent of property to the surviving spouse without probate) (G. L. c. 184, s. 7); extension of the benefit of the homestead protection (securing up to $300,000 in equity from creditors) to one's spouse and children (G. L. c. 188, s. 1); automatic rights to inherit the property of a deceased spouse who does not leave a will (G. L. c. 190, s. 1); the rights of elective share and of dower (which allow surviving spouses certain property rights where the decedent spouse has not made adequate provision for the survivor in a will) (G. L. c. 191, 

s. 15, and G. L. c. 189); entitlement to wages owed to a deceased employee (G. L. c. 149, s. 178A [general] and G. L. c. 149, s. 178C [public employees]); eligibility to continue certain businesses of a deceased spouse (e.g., G. L. c. 112, s. 53 [dentist]); the right to share the medical policy of one's spouse (e.g., G. L. c. 175, s. 108, Second [a] [3] [defining insured's "dependent" to include one's spouse), see Connors v. Boston, 430 Mass. 31 , 43 (1999) (domestic partners of city employees not included within term "dependent" as used in G. L. c. 3213, s. 2]); thirty-nine week continuation of health coverage for the spouse of a person who is laid off or dies (e.g., G. L. c. 175, s. 110G); preferential options under the Commonwealth's pension system (see G. L. c. 32, s. 12 [2] ["Joint and Last Survivor Allowance"]); preferential benefits in the Commonwealth's medical program, MassHealth (e.g., 130 Code Mass. Regs. s. 515.012 [A], prohibiting placing lien on long-term care patient's former home if spouse still lives there); access to veterans' spousal benefits and preferences (e.g., G. L. c. 115, s. 1 [defining "dependents"] and G. L. c. 31, s. 26 [State employment] and s. 28 [municipal employees]); financial protections for spouses of certain Commonwealth employees (fire fighters, police officers, and prosecutors, among others) killed in the performance of duty (e.g., G. L. c. 32, s.s. 100-103); the equitable division of marital property on divorce (G. L. c. 208, s. 34); temporary and permanent alimony rights (G. L. c. 208, s.s. 17 and 34); the right to separate support on separation of the parties that does not result in divorce (G. L. c. 209, s. 32); and the right to bring claims for wrongful death and loss of consortium, and for funeral and burial expenses and punitive damages resulting from tort actions (G. L. c. 229, s.s. 1 and 2; G. L. c. 228, s. 1. See Feliciano v. Rosemar Silver Co., supra).

Exclusive marital benefits that are not directly tied to property rights include the presumptions of legitimacy and parentage of children born to a married couple (G. L. c. 209C, s. 6, and G. L. c. 46, s. 4B); and evidentiary rights, such as the prohibition against spouses testifying against one another about their private conversations, applicable in both civil and criminal cases (G. L. c. 233, s. 20). Other statutory benefits of a personal nature available only to married individuals include qualification for

bereavement or medical leave to care for individuals related by blood or marriage (G. L. c. 149, s. 52D); an automatic "family member" preference to make medical decisions for an incompetent or disabled spouse who does not have a contrary health care proxy, see Shine v. Vega, 429 Mass. 456 , 466 (1999); the application of predictable rules of child custody, visitation, support, and removal out-of-State when married parents divorce (e.g., G. L. c. 208, s. 19 [temporary custody], s. 20 [temporary support], s. 28 [custody and support on judgment of divorce], s. 30 [removal from Commonwealth], and s. 31 [shared custody plan]; priority rights to administer the estate of a deceased spouse who dies without a will, and the requirement that a surviving spouse must consent to the appointment of any other person as administrator (G. L. c. 38, s. 13 [disposition of body], and G. L. c. 113, s. 8 [anatomical gifts]); and the right to interment in the lot or tomb owned by one's deceased spouse (G. L. c. 114, s.s. 29-33).

Where a married couple has children, their children are also directly or indirectly, but no less auspiciously, the recipients of the special legal and economic protections obtained by civil marriage. Notwithstanding the Commonwealth's strong public policy to abolish legal distinctions between marital and nonmarital children in providing for the support and care of minors, see Department of Revenue v. Mason M., 439 Mass. 665 (2003); Woodward v. Commissioner of Social Sec., 435 Mass. 536 , 546 (2002), the fact remains that marital children reap a measure of family stability and economic security based on their parents' legally privileged status that is largely inaccessible, or not as readily accessible, to nonmarital children. Some of these benefits are social, such as the enhanced approval that still attends the status of being a marital child. Others are material, such as the greater ease of access to family-based State and Federal benefits that attend the presumptions of one's parentage.

It is undoubtedly for these concrete reasons, as well as for its intimately personal significance, that civil marriage has long been termed a "civil right." See, e.g., Loving v. Virginia, 388 U.S. 1, 12 (1967) ("Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival"), quoting Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); Milford v. Worcester, 7 Mass. 48 , 56 (1810) (referring to "civil rights incident to marriages"). See also Baehr v. Lewin, 74 Haw. 530, 561 (1993) (identifying marriage as "civil right[ ]"); Baker v. State, 170 Vt. 194, 242 (1999) (Johnson, J., concurring in part and dissenting in part) (same). The United States Supreme Court has described the right to marry as "of fundamental importance for all individuals" and as "part of the fundamental 'right of privacy' implicit in the Fourteenth Amendment's Due Process Clause." Zablocki v. Redhail, 434 U.S. 374, 384 (1978). See Loving v. Virginia, supra ("The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men")

 

Without the right to marry - or more properly, the right to choose to marry - one is excluded from the full range of human experience and denied full protection of the laws for one's "avowed commitment to an intimate and lasting human relationship." Baker v. State, supra at 229. Because civil marriage is central to the lives of individuals and the welfare of the community, our laws assiduously protect the individual's right to marry against undue government incursion. Laws may not "interfere directly and substantially with the right to marry." Zablocki v. Redhail, supra at 387. See Perez v. Sharp, 32 Cal. 2d 711, 714 (1948) ("There can be no prohibition of marriage except for an important social objective and reasonable means").

I purposely added the text that named various rights that are given to married couples.  

with all these posts?

That each case set precedence declaring marriage as a right (the right to join in marriage with the person of one’s choice) protected under the 14th amendment.

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.

Mildred Loving released this in 2007 on the 40th Anniversary of the Loving v. Virginia decision:

Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don't think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the "wrong kind of person" for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people's religious beliefs over others. Especially if it denies people's civil rights.

I am still not a political person, but I am proud that Richard's and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That's what Loving, and loving, are all about.

full text of opinion

My concern is with states making amendments to their constitution to only recognize marriage only between a man and a woman.

Can a state constitutional amendment be overturned by the Federal Supreme Court?  I'm pretty sure it can but I can't find any examples.

I came across this CNN article stating that South Carolina voted to remove its constitutional ban on interracial marriage in 1998!  Apparently, the ban that was inacted in 1895 was not enforced.  The legislators wouldn't allow voters to decide to remove it and a poll said that only two-thirds of voters wanted to remove the ban.

Alabama was the last to repeal their ban in 2000.  CNN article

I know people don't like it when gay marriage is compared to interracial marriage; but, it all looks very familiar

DOMA states:

1. No state (or other political subdivision within the United States) need treat a relationship between persons of the same sex as a marriage, even if the relationship is considered a marriage in another state.
2. The Federal Government may not treat same-sex relationships as marriages for any purpose, even if concluded or recognized by one of the states.

Article IV, Section 1 of the U.S. Constitution states:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

It seems like a flagrant violation to me.  How did they get away with it?  I've seen that there have been appeals made to the Supreme Court but the court refuses to review them.

I am using the Loving vs. Virginia case, the quoted statement "Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival...." to explain how s.g marriage can be explained (possibly).

The word existence, could sums up how individuals (no matter what sexual orientation) need comfort, love, support, etc from another person if they choose to have it. Like with babies being born, contact has to be the main factor or the baby will not survive for long. Humans can find contact through other humans (friends, family, significant others..), animals (pets...), etc. but it has to be there.

The word survival, adds to the strength of contact between humans. Without it, humans will not survive no matter what sexual orientation.

I apologize jackedup77 for not answering your question "is marriage a right?". I am in my own little world right now about the question I have on this issue. I am really interested in this topic right now. Thanks for bringing it up. 

I think in today's day and age (chuckles, that a terrible way to begin..), there seems to be this proliferating fear of marriage, due to high divorce rate -- possibly.

 Coming from a very close-knit family that values marriage between a man and a women quite highly, I have often taken issue with the idea of it, legal or religiously-inclined. I think that when it comes down to it, I would prefer people to focus seriously on civil unions as well as marriages, and having the proper allocated rights divided, so if I have a girlfriend/partner who is sick, I can have my insurance for her covered and so forth.

 I admit I do not know too much about this issue and I should. Indeed, I have learned a great deal simply from this thread, but I am no fan of marriage, (chuckles), sorry -- that's my own personal conflict to deal with. But if anyone feels they should and would like to, I support it full-heartedly, irregardless, well, that's pretty obvious. :)

http://www.afterellen.com/node/34216#comment

Look at this thread that the user Al posted. I think this pertains to this discussion in a way.