- In November of 2014, the logical argument was made that marriage is not a United States Constitutional legal right.
- In October of 2009, the argument was made that a state's recognition of marriage was a tri-party agreement; with financial benefits to the couple being recognized by the state. That argument was stated in the 6th Circuit DeBoer v. Snyder opinion.
In his arguments against forcing states to recognize same-sex marriage in Obergefell v. Hodges, John Bursch (Special Assistant Attorney General for Michigan) used this exact same line of reasoning. From the hearing's transcript (page 78) (emphasis added):
...In Butler, you said when someone's serving a life sentence, it's appropriate for the State to deny them the opportunity to marry because they never had that opportunity.
So even there, you you were tying the State interest that we're asserting here to marriage.
And and let let's take away all laws regarding cohabitation and and intimacy outside of marriage so that there is no criminal conduct, the underlay for all those things.
If the State today decided to have no marriage, as some States have proposed, that wouldn't violate a fundamental right. The fundamental right at stake in those cases was the right to be left alone, not the right, as Chief Justice Roberts intimated in the first part of this argument, to force the government to come into your home and recognize something and and to give you benefits. Those are two very different things.
And and you can draw the analogy to the abortion context. And I'm reluctant to bring that up, but, you know, in Roe v. Wade and Casey, this Court says the government cannot interfere in that private choice. That's a fundamental right. In Maher, the Court says but a woman cannot force the government to come participate in that by paying for it.
Likewise here. Lawrence said the government cannot interfere in private, intimate conduct. Our position is that the Court cannot, as a constitutional matter, say but yes, you can force the State into these relationships by by forcing them to recognize and give benefits to anyone. That's not the way that our fundamental rights doctrine works....
Labels: gay marriage