Junebug
Well-known member
The Declaration of Independence isn't a legally binding document. It's "binding" insofar as it declared our independence from England, but it doesn't establish any laws to govern the United States. Moreover, and consistent with this purpose, it didn't set forth any list of inalienable rights, but just set them forth as a category. So, not to mention the fact the founders didn't think homosexual marriage was an inalienable right, your entire premise is flawed. I'm not answering a question with a flawed premise.
Here's what I will say, though. The language that made it into the constitution in the 5th Amendment, and then later in the 14th, is "life, liberty, and property." I don't know why the language changed from the declaration of independence, but one hypothesis is that "pursuit of happiness" is too nebulous to have any content. It means both everything and nothing, depending on who is interpreting it. "Property," on the other hand, has a defined meaning.
The actual phrase in the constitution is "no person shall be deprived of life, liberty, or property without due process of law." I don't think this language has any substantive protections--it's purely about procedure, as the words "due process" indicate. The Supreme Court disagrees, although certain justices continue to maintain this view.
In any event, the Supreme Court has concluded that the right to marry is a fundamental one protected by the clause. Calling something a "fundamental right" doesn't mean that it's insulated from regulation. States are allowed to preclude minors from marrying. States are allowed to preclude people with close family relations from marrying. States are allowed to preclude more than two people from marrying. And, in my view, even assuming marriage is a "fundamental right," states are allowed to preclude homosexuals from marrying. Moreover, I don't think its an equal protection problem to do so--male and female homosexuals are treated identically, and laws treating homosexuals differently do not receive heightened scrutiny.
I will add that if the issue comes before the Supreme Court as currently composed, I expect it to hold that the fundamental right to marriage extends to homosexuals. Lawrence v. Texas is plainly distinguishable (that case held that homosexuals have a right to commit sodomy in their own homes), but I think Kennedy will extend it under the "right to marry" cases. If Kennedy is replaced with a conservative, however, I expect it will go the other way.
From a policy standpoint, I think that states should pass laws creating a civil union that homosexuals should be allowed to enter. I don't think it should be called "marriage" and I think there are certain preferences that should be given to married couples, like preferences in adoption. But I don't think this, or, for that matter, homosexual marriage, is a "right" that exists under any current provision of federal law.
