For better and worse, U.S. constitutional law has long expressed the opinion
that marriage is essential to both individual and collective well-being. In
the 1923 case, Meyer v. Nebraska, the Court ruled that the
liberties protected under the doctrine of substantive due process
included:
the right … to contract, to engage in any of the common
occupations of life, to acquire useful knowledge, to marry, establish a
home and bring up children, to worship God according to the dictates of
his own conscience, and generally to enjoy those privileges long
recognized at common law as essential to the orderly pursuit of
happiness by free men.
Sixty-five years later, the Court decided Zablocki v.
Redhail and offered its most extensive exposition on the
fundamental right to marry. Unlike Meyer,
Zablocki was decided under the Equal Protection Clause
of the Fourteenth Amendment. In his majority opinion, Justice Marshall
argued that:
It is not surprising that the decision to marry has been placed on the
same level of importance as decisions relating to procreation,
childbirth, child rearing, and family relationships … it would
make little sense to recognize a right of privacy with respect to other
matters of family life and not with respect to the decision to enter the
relationship that is the foundation of the family in our society.
These opinions exemplify the Court’s problematic jurisprudence on
marriage: Meyer simply assumes the fundamentality of
marriage, whereas Zablocki irrationally presumes that
marriage is coterminous with sex, reproduction, and family. Perhaps the most
famous of the Court’s marriage cases, Loving v.
Virginia, shares these flaws, taking marriage to be fundamental
because it wrongly presumes a connection between marriage itself and the
beneficial ends that marriage is thought to facilitate. Moreover,
Loving most clearly exposes why constitutionalizing
marriage is not only erroneous, but also dangerous.