Do we have the right to marry as we please? | Eastern North Carolina Now

    Publisher's Note: This article originally appeared in the Beaufort Observer.

If the state cannot restrict your choice of marriage how can it keep you from marrying your dog?

    With the exception of the Interstate Commerce Clause, no part of the Federal Constitution has been more distorted by judicial activism than has the Fourteenth Amendment. That is the post Civil War amendment that required all states to guarantee due process to all "persons" in their jurisdiction and to insure the "equal protection" of the law.

    Over the years the Supreme Court has adopted a judicial review standard for determining whether the Equal Protection Clause is applicable to a given factual situation. That standard holds that "strict scrutiny" will be applied to any state action that infringes on a Fundamental Right or creates a "suspect classification." If a court find either provision applicable the application of strict scrutiny requires that a state show a compelling reason for its action. If the court finds no Federally protected Fundamental Right, according to the specific words within the constitution, or precedent from a previous holding, such as protection against gender discrimination.

    When applied to the issue of homosexual marriage the issue then becomes whether to right to marry is a fundamentally protected constitutional right. If it is then a state must show a compelling reason to restrict that right. That standard of compelling reason is often very difficult to meet. If, on the other hand the court finds the marriage restriction does not infringe on a fundamental right then the state must only show a reasonable reason for it restrictions.

    So the crux of the issue then becomes what the state's reason is for restricting marriage.

    That is an essential argument in the case of Herbert (the Governor of Utah) v. Kitchen et. al. (homosexuals who wanted to marry in Utah). The voters of Utah had adopted Amendment 3 to the state's constitution which in effect outlawed homosexual marriage.

    The Federal District Court threw out Amendment 3 as a violation of the Equal Protection Clause. The Tenth Circuit Court of Appeals held the trial court's finding. The case has now been appealed to the U. S. Supreme Court.

    The Desertnews.com recently ran an article reviewing Utah's appeal to the Supreme Court. The article, we found, is an excellent discussion of the legal issue of homosexual marriage. You can review the article by clicking here.

    As you read the article consider this: If marriage is found to be a federally protected constitutional right that allows a person to choose to marry a member of the same sex, what is to keep another person from marrying their dog, or horse or Corvette? Seriously, if a person is free to marry whomever they want, where do you draw the line that keeps them from marrying more than one person? The right to marry, it seems to us, as you please cannot be restricted if the court finds it is a fundamental right. Where do we draw the line?