The term fundamental right gets thrown around alot. No I don't think it is a fundamental right, but nor do I think the state can show a compelling interest in messing with it.
Yeah, but, ummm... you are wrong.
Chief Just Warren's opinion for the UNANIMOUS ruling on Loving v Virginia
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
http://en.wikipedia.org/wiki/Fundamental_rights#United_States
The Bill of Rights lists specifically enumerated rights. The Supreme Court has extended fundamental rights by recognizing several fundamental rights not specifically enumerated in the Constitution, including but not limited to:
- The right to interstate travel
- The right to intrastate travel
- The right to privacy[SUP][10][/SUP] (which includes within it a set of rights) including:
a. The
right to marriage[SUP]
[11][/SUP][SUP]
[12][/SUP] b. The right to procreation [SUP]
[13][/SUP] c. The right for a woman to choose to have an abortion before fetal viability [SUP]
[14][/SUP][SUP]
[15][/SUP] d. The right to contraception (the right to use contraceptive devices) [SUP]
[16][/SUP] e. The right of family relations (the right of related persons to live together) Any restrictions on these rights are evaluated with
strict scrutiny. If a right is denied to everyone, it is an issue of
substantive due process. If a right is denied to some individuals but not others, it is also an issue of
equal protection. However, any action abridging a right deemed to be fundamental, when also violating equal protection, will still be held to the overriding standard of strict scrutiny, instead of just simply a rational basis test.
...
The court cannot change it's tune on this without upsetting precedent. The chance that the California court is overruled is very slim.
