Tuesday, March 10, 2009
Is marriage a fundamental right?
Anyone who has read (or taught) the last paragraph of Loving v. Virginia has struggled with this issue. Certainly the same-sex marriage cases do not support a viable argument that marriage is a recognized fundamental right under the due process clause of the Fourteenth Amendment.
The present controversy in California on Proposition 8, most recently blogged here, implicates this issue somewhat. But a new California Initiative has been proposed which could cause courts to consider the question from a different direction. According to the California Secretary of State's Ballot Measure Update, a new ballot measure has been added to the Initiatives in Circulation:
Substitutes Domestic Partnership for Marriage in California Law. Initiative Constitutional Amendment and Statute.
Summary Date: 03/09/09 Circulation Deadline: 08/06/09 Signatures Required: 694,354
Proponents: Kaelan Housewright and Ali Shams (818) 472-0982
Replaces the term “marriage” with the term “domestic partnership” throughout California law, but preserves the rights provided in marriage. Applies equally to all couples, regardless of sexual orientation. Repeals the provision in California’s Constitution that states only marriage between a man and a woman is valid or recognized in California. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local government: This measure would have an unknown fiscal effect on state and local governments. (09-0003.)
Full text here.
A development to watch. And certainly the basis for a great in-class hypothetical (or exam question).