With the continued debate over the strike down of Proposition 8, the legal discussion has honed in on the question of whether or not the institution of marriage itself is a fundamental right.
Former Ohio Secretary of State Ken Blackwell and attorney Ken Klukowski have written an analysis on the Walker decision that illuminates some of the Constitutional issues regarding this case.
In defending this government power grab, some have pointed to past cases in which the Supreme Court recognized a “right” to marry.
To that point, it is true that there is a fundamental right to participate in the already existing institution of marriage. Just as there is a fundamental right to participate in other societal institutions.
What the Walker decision asserted, however, was that the institution of marriage itself was a “right.” If marriage itself is a right, then anyone can exercise that right in any way they please. Judge Walker insisted that this “right” has always existed, which is a mute argument when you consider that one can claim the preexistence of any “right” he wishes to exercise. There is no basis for this “right” other than a judge’s decree. The Walker decision still held that this “right” of marriage is still to be restricted only to two individuals in a union. This undermined the very contention that marriage is a “right.” If marriage is a right, then what about polygamous marriages?
While in the past, court decisions have struck down laws barring a certain man or a certain woman from marrying the opposite sex, this decision sought to give a government redefinition of what a marriage actually is, in doing so, the court acted outside of its jurisdiction. The bottom line is that while there is a right to participate in the already existing institution of marriage (a union between one man and one woman), the institution of marriage itself is not a right that an individual can exercise at his own whim.
This is not just with the marriage issue, we have also seen this with the Healthcare debate. In which President Obama and his progressive allies referred to the “right” to healthcare. We have seen a pattern with this in the Age of Obama, and it may turn out to be a defining trait of his administration. Although he must be given credit for the fact that at least on paper, he is in favor of traditional marriage. Still, we see a pattern in which anything and everything that the progressives want enacted becomes a “right.”
It is important for us to remember that according to our Declaration of Independence, we are “endowed by our Creator with certain inalienable rights.” The government is not the giver of our rights, God is. Whether we are dealing with marriage, healthcare or entitlements, we need to realize that our government is limited and part of that limitation is protecting our rights that already exist, and not creating new “rights.”
