OPINION: Marriage just isn't a fundamental right

Michael J. Butler, of Greenport, is an attorney and former adjunct associate professor of criminal justice at the former Katharine Gibbs College in Manhattan.

Many of the well-meaning opinions in favor of gay marriage draw on social analysis, soothing emotion and even some perceived logic. But they completely miss the legal target. If gay marriage is to become law, it must meet legal muster.

The recent U.S District Court decision striking down a California ban on gay marriage was based on due process grounds - essentially matters involving fairness and the 14th Amendment, which is our embodiment of equal rights. The case and its outcome may represent a classic new-age approach to law. The law - not the courtroom - is becoming more a calculated game of strategy and less a body of principles.

In this case, the plaintiffs cleverly proposed that the right to marry is a fundamental right. It's worth noting that the word "marriage" does not appear in the U.S. Constitution. In fact, it is incredibly difficult to argue that marriage is a fundamental right - except, apparently, as it applies to gays.

Representing the plaintiffs, Ted Olsen used, among other cases, the landmark Loving v. Virginia (1967) decision, which held unanimously that race-based restrictions on marriage are unconstitutional. Lawyers use prior similar cases all the time in arguing for a new interpretation. Usually the similarities or differences between the cases make it like comparing apples to oranges. Olsen however, was in some respects comparing apples to aardvarks.

Equating a ban on interracial marriage to one on same-sex marriage is without legal or historical merit, and in some ways it trivializes the civil rights movement. Many of the Southern states outlawed interracial marriage out of the slavery-based notion that blacks were not equal to whites - a form of white supremacy. Under doctrines that law professors call "natural law," slavery, piracy, genocide and a variety of other heinous acts have been universally understood to be unlawful.

Slavery and the ugly fruit it bore then and now is offensive. By extension, the very idea that people could be denied the right to marry based on race offended natural law. In fact, as wider travel became more common, interracial marriages occurred around the planet and were widely accepted without regard to special rights throughout history.

But same-sex marriage, while it may not explicitly offend the doctrine of natural law, certainly isn't supported by it. And one could argue that thousands of years of opposite-sex marriage by couples worldwide may stand in opposition to the newfound same-sex version. But, the obvious challenge for the defendants was to cogently argue against marriage as an unrestricted fundamental right.

The view of marriage as a fundamental right is complicated by other concerns. The United States is based, among many propositions, on the principles of federalism. There is a designed tension between the federal government and the sovereign states that is essential to our form of government. Licensing marriage is determined by each state. If the nation "constitutionalizes" every socially desirable right, we flirt with a legal propensity to follow a path that leads to preconceived decisions. America must resist the temptation to legally make it up as we go along.

For the most part, our constitutional amendments exemplify our individual and collective rights. These amendments themselves are the product of electoral consensus created within the framework of federalism.

The states retain the power, outside of clearly defined federal proscriptions, to regulate our legally recognized, social and legal relationships. For the federal courts to use an amendment in our constitution enacted before the legal contemplation of same-sex marriage - to find there an unqualified "right" - is not judicial activism but judicial fiat.

States can sanction gay marriage, or the Constitution can be amended to create that right. But we cannot, as a legally responsible nation, allow our courts to declare it legal under the 14th Amendment based on an oversimplified application of constitutional analysis.