(June 2, 2015 at 7:57 pm)Losty Wrote: Marriage is already a fundamental right, as it is included as part of our fundamental right to privacy. I'm sorry if I've gone completely out of line here but this is what if remember from high school government class.
Marriage is not defined as a fundamental right under the 4th amendment right to privacy. As determined by the Supreme Court, A person has a fundamental right to privacy where they may have a reasonable expectation of privacy such as in a phone booth, in there private residence, the doctors office, and in the spousal bedroom.
The case regarding the ban on interracial marriage was about miscegenation and not about marriage per se. More than 640 interracial marriages were performed in Virginia the same year the Lovings were married. However the laws of against Miscegenation denied interracial couples the right to engage in intimacy and general laws made intimacy outside the confines of marriage illegal, which was violation of the right to privacy in the spousal bedroom which was reaffirmed in Lawrence V. Texas.
As stated by Scalia, the prohibitions on marriage are present because it is not a fundamental right. This current cases wants us to define a fundamental right to marriage which does not presently exist. Once marriage is defined constitutionally states may no longer tailor marriage beyond the range of strict scrutiny.
As state by respondents, In Roe V Wade the Court said the state may not interfere in private choice as a violation of the fundamental right to privacy. However, in Maher V. Roe the Court said a woman may not force the state to participate in that choice by paying for it. Same here, in Lawrence V. Texas the court said the state cannot interfere in private intimate conduct as a violation of the fundamental right to privacy. Repondent's position is, just as in Maher V. Roe, that the parties cannot then force the state to participate by forcing them to recognize and give benefits.
