A couple of years ago, I wrote a column in which I advocated that the conflict between same-sex marriage proponents and opponents should be solved in a novel way: get the government out of the marriage business altogether.

This year I had the opportunity to do some research on the case of Perry v. Schwarzenegger, which challenges California’s Proposition 8.

This initiative made an amendment to California’s state constitution in 2008 that restricted marriage to the union of one man and one woman.

The case will likely eventually reach the U.S. Supreme Court.

The two lawyers representing the same-sex couples who are challenging the amendment are an odd political pair.

One of the lawyers, David Boies, represented Al Gore at the U.S. Supreme Court in 2000 during the disputed Florida recount case. The other lawyer, Ted Olson, was President George W. Bush’s Solicitor General.

The two are teaming up to challenge California’s constitutional amendment claiming that the exclusion of same-sex couples from the fundamental right of marriage violates the Equal Protection Clause and the Due Process Clause of the 14th Amendment to the U.S. Constitution.

The Equal Protection Clause requires that states not deny anyone the “equal protection of the laws.” The Due Process Clause prevents states from depriving citizens of “life, liberty, or property, without due process of law.”

You might think that equal protection is the most obvious claim same-sex couples might put forward. But in my opinion, due process is the most likely vehicle for overturning California’s marriage law.

Equal protection won’t be a successful argument for same-sex marriage supporters because under the court’s way of analyzing equal protection cases, laws that discriminate on the basis of sexual orientation are given wide deference.

Only cases involving “suspect classes” such as race, religion, and national origin get the highest level of scrutiny.

Most other types of discriminatory laws are presumed to be constitutional. This isn’t as bad as it sounds. Laws have to discriminate. The most common example is age. Young people can’t drive, vote or drink until they reach the requisite age, for instance.

The Court has declined to create more suspect classes. The point is, a marriage law will likely be upheld under an equal protection argument.

Due process is a different story, however. Under due process most laws are presumed constitutional.

But laws that infringe fundamental rights are given the most exacting review by the court.

In other words, you have to have a compelling governmental interest for the law to stand. In addition, the law must be narrowly tailored to achieve that goal.

The court has already said that “marriage” is a fundamental right. In 1967, Loving v. Virginia invalidated a Virginia law that prohibited interracial marriages. It did so on equal protection grounds (remember race gets the highest level of scrutiny), but also on due process grounds.

So, in other words, the biggest battle has already been fought. If marriage is a fundamental right, then California’s marriage law is likely to be overturned, meaning any similar law in every state would be struck down.

My research has led to question whether “marriage” really is a fundamental right. According to the Declaration of Independence, fundamental rights come from the Creator, not the government. So how can we say that we have a fundamental right to a government sponsored license, which is what civil marriage is?

It seems that the very multifaceted nature of marriage is what makes this issue so difficult. It is at the same time both a civil (i.e. government) and a social institution. But it hasn’t always been that way.

In Western Europe, it wasn’t until the mid 1500s that the church authorities began to hand over marriage regulation to civil government authorities. So, once the government started to put its stamp of approval on marriage, now we all the sudden have a fundamental right to the government’s approval of our marriage relationships?

Even the Massachusetts court that recognized gay-marriage in 2003 admitted that the government could abolish civil marriage altogether. Once you distinguish marriage as a civil institution from marriage as a social institution, it seems absurd to suggest that civil marriage, a government created entitlement, can be a fundamental right.

Of course, the issue is more complicated than my limited column space allows me to explain, but if the Court distinguishes between the civil and the social right to marry, then same-sex marriage may be rejected.

Otherwise, California’s gay-marriage ban may be struck down. The consequences of failure on both sides are monumental.

The solution I suggest is to get the government out of the business of marriage. All of us ought to resent the fact that we have to go get a government license and pay a fee to get married.  

Why is it necessary to have the government license our marriages? Why must we pay the government a fee for the exercise of this right, if it’s fundamental, after all?

There are no tax benefits attached to the confessional booth, no license for baptism, no government license for giving birth to a child. Why is marriage any different?

There was a day when churches and society were in charge of marrying people and everyone was free to set their own rules governing marriage. I’d rather have that system, anyway. Why not get the government out of the business once and for all?



Tar Heel Dispatch is written by Tyler Younts, a second-year law student at Campbell University. Younts, who grew up in Farmer, has a passion for writing and for politics and for writing about politics. E-mail comments to news@randolphguide.com or directly to Younts at tlyounts0209@email.campbell.edu