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Fundamental right to choose whom to marry

A federal judge in Alaska struck down the state’s ban on same-sex marriage on Sunday — clearly an urgent matter, for the court to issue an opinion on a Sunday! In a sense, this is the same-sex marriage movement coming full-circle. Alaska had one of the first same-sex marriage cases in the modern wave, post-Hawaii (Brause v. Bureau of Vital Statistics, Alaska Super. Ct. Feb. 27, 1998). And as a result, one of the first state constitutional amendments to ban same-sex marriage. This ruling was not at all surprising, after the Ninth Circuit struck down same-sex marriage bans in Idaho and Nevada last week. Alaska sits in the Ninth Circuit and is bound by that court’s opinions, efforts of the Alaska governor to continue enforcing their law notwithstanding.

But what struck me as I read the opinion was how it described the fundamental right to marriage. I’ve written before about how, as a policy matter, I find equal protection to be a much better basis for protecting same-sex marriage than the fundamental right to marriage (as a doctrinal matter, I think both are sound). My concern is that discussions of the fundamental right to marry often privilege marriage at the expense of other family forms. Marriage is protected because it is the cornerstone of our society, something that everyone should aspire to, and something that we as a nation should value above all else. Yes, of course, if marriage is something that we think everyone should aspire to, I agree that it should be available to everyone. But I worried that the classic description of the fundamental right to marry reified this idea of marriage.

So what struck me about the Alaska court’s opinion was its repeated reference to the “fundamental right to choose whom to marry” (emphasis added). Later in the opinion, it explains “the choice of whom to marry is an associational right” (citations omitted). Most importantly, it discussed Lawrence at length for the proposition that the constitution protects the right to make decisions on personal matters. While it does not explicitly cite the language of “equal liberty” from Lawrence, this citation implicitly links this idea of equal liberty to the fundamental right to marry. The tone of this opinion is much less about the need to preserve marriage as an institution, and more about choice and equality.

I’ve unfortunately been barely able to keep up with the same-sex marriage opinions as they come down, so I can’t say much about how this one compares to other recent opinions. I did check the Ninth Circuit opinion to verify though that the majority there relied on equal protection rather than due process. The Ninth Circuit explained that bans on same-sex marriage fail the test of heightened scrutiny, applicable to laws that discriminate based on sexual orientation (at least in the Ninth Circuit, thanks to SmithKline).

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