Prop 8 and DOMA: Is There a Fundamental Right to Marry?

That a fundamental right to marry exists matters for the level of scrutiny: if a law impinges a fundamental right, the law can only pass constitutional muster if it is "narrowly tailored" to achieve a "compelling government interest" and is the "least restrictive means" for achieving that goal; if a law does not implicate a fundamental due process right, we apply rational basis review, which requires any conceivable legitimate government interest to be rationally related to the law. Although we have seen anti-gay discriminatory laws fail rational basis review (Amendment 2 in Romer, DOMA in Gill, for example), it is clear that if gays enjoy a fundamental right to marry, it will be difficult for bans on marriage recognition to withstand strict scrutiny.

AFER attorneys argued this point at trial and before the Ninth Circuit in Perry and much of it was picked up by Judge White in Golinski.

As far back as 1965, the Supreme Court declared in Griswold v. Connecticut that "[m]arriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects." Griswold involved a married person's challenge to an antiquated state law that banned the use of contraceptives. The Court based its rejection of that law on a right to privacy in the "penumbras and emanations" of the Bill of Rights, but its declaration of marriage as an institution of bilateral equality so essential to our lives allowed a host of subsequent courts to find that any impingements on an individual's right to marry imlicated a fundamental right.

LovingSuch was the case in Loving v. Virginia (1967), Zablocki v. Redhail (1978) and Turner v. Safley (1987). Loving, of course, challenged a ban on interracial marriage, while Zablocki and Turner overturned the denial of marriage of rights to deadbeat dads and prison inmates, respectively. In Loving, the Court stated that the "freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men," suggesting that we cannot take restrictions on that "vital personal right" so lightly. In Zablocki, the Court was even more clear: the "right to marry is of fundamental importance for all individuals." And, in Turner, the Court overturned a ban on prison inmates because the "decision to marry is a fundamental right."

That language is telling, especially in context. The fundamental right is the decision to marry, not a particular type of marriage nor a decision to enter a particular type of marriage. The right is broad — Loving, Zablocki, and Redhail concerned a fundamental right to marry, not a fundamental right to interracial, deadbeat dad, or inmate marriage — and refers to the individual's decision to opt for marriage. Bans on same-sex marriage recognition take away our right to decide to get married, and a comprehensive domestic partnership law that gives all the rights of marriage without the word "marriage" can never be a suitable stand-in. California's Prop 8 took away our right to decide to marry, forcing us to choose between a domestic partnership or nothing.

After all, as the Court stated in Planned Parenthood v. Casey (1992), "[o]ur law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education…. These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment." That principle was extended to gay persons in Lawrence v. Texas, which recognized that criminalizing sodomy took away our rights to make personal intimate decisions. If we have that right, a law that prevents us from making the most intimate and most important decision to get married infringes our fundamental rights, as well.

This is what AFER has been arguing since the beginning of Perry v. Brown, and although the Ninth Circuit took a narrow shortcut to reject Prop 8 without deciding if there is a fundamental right to marry for gay persons, Judge White not only strongly hinted that gays do enjoy a fundamental right to marry by going through the argument above, but also relied on Judge Reinhardt's decision in Perry to seal the deal. The one barrier standing in the way of extending a fundamental right to marry to gay people is the 1972 case of Baker v. Nelson, a summary dismissal by the Supreme Court of a Minnesota case that said there is no fundamental right to gay marriage. Perry took no official position on Baker, finding it irrelevant given the court's narrow holding. But, the Court did question Baker's relevance forty years after it was decided, especially given the greater acceptance of gay rights in a post-Romer and post-Lawrence world.

Judge White in Golinski went further: Baker v. Nelson could not be a barrier to a gay person's fundamental right to marry because all the fundamental right to marry cases — from Loving to Zablocki to Turner – were not about particular kinds of marriages or particular kinds of spouses. They were about a single fundamental right to decide to marry that everyone enjoys, regardless of the character of the spouse.

Judge White has showed us the path and within the next few years, he will be joined on that path by sister courts, appellate courts, and, hopefully, the Supreme Court. All we must do is continue to make the argument in court.


Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.


  1. daftpunkydavid says

    ari, question: in his analysis, judge white says that the 9th circuit determined that witt would not have passed rational basis review.

    In the section “The Question of Level of Scrutiny is Still Open”, white writes: “And the Ninth Circuit in Witt v. Department of Air Force merely found, in the context of military policy where judicial deference “is at its apogee,” that the military’s policy of “Don’t Ask Don’t Tell” would fail even rational basis review. 527 F.3d 806, 821 (9th Cir.2008).”

    Some argue that this is an erroneous interpretation because of this snippet:

    “We next turn to Major Witt’s Equal Protection Clause claim. She argues that DADT violates equal protection because the Air Force has a mandatory rule discharging those who engage in homosexual activities but not those “whose presence may also cause discomfort among other service members,” such as child molesters. However, Philips clearly held that DADT does not violate equal protection under rational basis review, 106 F.3d at 1424-25, and that holding was not disturbed by Lawrence, which declined to address equal protection, see 539 U.S. at 574-75, 123 S.Ct. 2472(declining to reach the equal protection argument and, instead, addressing “whether Bowers itself ha[d] continuing validity”). We thus affirm the district court’s dismissal of Major Witt’s equal protection claims.”

    My question is: was witt indeed misinterpreted by white? And if so, what are the consequences of this on the validity of his ruling?

  2. K in VA says

    Re Relevance of Baker:

    Not only Romer and Lawrence render Baker irrelevant: The Congress of the United States made marriage a federal issue by passing DOMA.

  3. Matt says

    You would think that Baker would provide a barrier, but when the court rejected it, their reasoning wasn’t because there is “no fundamental right to gay marriage”. They dismissed it in one sentence: “for want of a substantial federal question”. In 1972, there were no laws, no bans, no constitutional amendments against gay marriage in any state; it simply didn’t happen. The courts refuse to hear cases on issues either against or for which there are no laws. Contrary to obsessive right wing cherry pickers, they’re not judicial activists. Baker v Nelson’s dismissal reasoning was negated by DOMA in 96, and the fiasco many states did in a knee jerk reaction from 2000-2009. That’s the “federal question” the court was seeking in 1972. Baker v Nelson is completely irrelevant now.

  4. JONES says

    “Judge White has showed us the path and within the next few years, he will be joined on that path by sister courts, appellate courts, and, hopefully, the Supreme Court. All we must do is continue to make the argument in court.”

    ‘Hopefully, the Supreme Court’ …. therein lies the crux. We’re relying on THIS Supreme Court voting favorably on Gay marriage rights. When THIS SC rules negatively where are we ??

    Look what they did with Citizens United. A very narrow case was used to upend years of campaign finance laws. Corporatist American politics is now fully legal. Did anyone see that coming ?

    My personal opinion that the civil rights issue of same sex marriage will ultimately be decided by a SC ruling I think that hoping for a (fair) favorable ruling from Roberts, Scalia, Thomas & ilk (of THIS Supreme Court) could be a disaster.

    Better have a damn good backup plan.

  5. StraightGrandmother says

    To Matt:
    Posted by: Matt | Feb 29, 2012 3:07:22 PM

    StraightGrandmother= Matt, I think you have given the best explanation of Baker that I have ever read, and I read all these court cases.

    I saved your comment in a file and will be re-posting it in other discussions. Good job Matt!

    Many thanks!

  6. StraightGrandmother says

    Ai- I LOVE your writings, many many thanks for taking your time to write about this. I hang on your every word Ari, and I go back and re-read them.

  7. says

    Theres a small typo in the text where Ari refers to “Zablocki” and “Redhail” as 2 separate cases. What he meant to say was “Loving, Zablocki and Turner were cases referring to a fundamental right to marry.”

    You know the other side is desperate (especially notable is Smith’s bizarre dissent in Perry) when they refer to Baker v Nelson as Supreme Court precedent that has any validity now. That case is freaking 40 years old and occurred 30 years before any state had legalized marriage equality and almost 25 years before the federal judiciary waded (improperly) into the marriage business with DOMA.

  8. BZ says

    Ari – I think your analysis is spot-on. Since Romer the courts have been able to tap dance around the issue of whether gay people are entitled to strict scrutiny simply because anti-gay prejudice is so irrational that homophobic laws don’t even withstand the rational basis test. But if they would finally hold that we are entitled to strict scrutiny, then the homophobes would no longer be able to enlist government at all levels to legally enforce anti-gay prejudice.

    The fact that marriage is a fundamental right might just be the impetus for the SCOTUS to find that we are entitled to strict scrutiny. Perhaps. It is ironic that the very irrationality of anti-gay prejudice makes it difficult to get the courts to recognize the sweeping and pernicious nature of homophobia, and to enjoin the government from enforcing homophobia once and for all.

Leave A Reply