Friday, April 15, 2005

Clearing up a misconception

One of the arguments I sometimes hear from gay-marriage opponents is that the government is free to bar same-sex unions because marriage isn't a fundamental liberty but just a privilege. Of course, the same folks also often turn around and assert that marriage is fundamentally sacred and central to society, so you have to wonder about the logical disconnect.

From a legal standpoint, marriage is very much a fundamental liberty. Several U.S. Supreme Court opinions, including Loving v. Virginia (struck down interracial marriage ban) and Turner v. Safley (struck down regulation barring prisoners from marrying without superintendent's approval) have made it clear that marriage falls within the zone of privacy protected by constitutional guarantees against government intrusion.

The Court has yet to rule if the preservation of the traditional male-female nature of marriage is sufficient grounds for states to ban gay marriage, and it's unlikely to do so in the near future, for reasons I've already mentioned. But it's safe to say that even if the justices upheld a ban, they wouldn't do so by finding that marriage is nothing more than a privilege subject to arbitrary limitations.

So just how many legal rights does marriage affect? Hundreds, ranging from child custody to inheritance to testimonial immunities. You can find a summary here and a full roster here.


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