This is a letter I sent to The Wall Street Journal, commenting upon an op-ed piece by attorney David Boies:

David Boies in “Gay Marriage and the Constitution” (op-ed, July 20), presents but one side of the issue.  Mr. Boies quotes Zablocki v. Redhail to the effect that “decisions of this Court (the U.S. Supreme Court) confirm that the right to marry is of fundamental importance for all individuals.”  He notes that the state law that was overturned in Zablocki  was overturned even though it was supported by legitimate state policies, and he then proceeds to devote most of the rest of his piece to asserting that California’s Proposition 8 is not even as worthy as the law invalidated in Zablocki, because, in his opinion,  Prop. 8  is not supported by any legitimate state policy.

Here is the shortcoming in Mr. Boies’s argument.  The U. S. Supreme Court in Zablocki found that ” . . . the right to marry is of fundamental importance . . .”, and supported its decision on that basis.  As precedent for its decision, the Court cited Loving v. Virginia, a 1967 case in which the Supreme Court held that “the freedom to marry has long been recognized as one of the vital personal rights essential to the pursuit of happiness by free men.”   For better or worse, neither decision provides us with a definition of “marry.”  One might ask, when the Court referred to a fundamental right of a man to marry, did it mean the right to marry a woman, or to marry another man, or to marry seven or eight women, or a little girl, or a (male or female) farm animal?  How can one understand a “fundamental right” to do something without knowing what it is that the person has the right to do?  As best one could tell, all that the Supreme Court has established is a fundamental right of an adult human being to marry one other adult human being of the opposite gender, regardless of whether one is incarcerated or behind on his child support or of a different race from that of his intended.

[Posted @ mecmoss.com on 12 Feb 2012]