The Supreme Court has adopted the doctrine of a constitutional “fundamental right to marry,” and has construed this doctrine to mean a fundamental right to state-recognized legal-marriage. However, the doctrine has several problems: (a) the Court never satisfactorily explains why marriage is a fundamental right; (b) the Court never defines the boundaries of marriage as a fundamental right; and (c) the Court has occasionally treated marriage as if it were not a fundamental right. Further, the idea of a “fundamental right to marry” contains a debilitating internal contradiction: the notion of a fundamental right implies firm privileges which the state cannot deny, define, or disrespect, but marriage boundaries (the legal rules establishing who is eligible to marry whom, what formalities are required for marriage, and the legal ramifications of marriage) in the United States have always been subject to almost plenary state control which denies some marriages and refuses to give legal effect to others. What can a “right to marry” protecting individuals against the state possibly mean when the state itself determines what this thing called “marriage” is? Two observations about marriage suggest the answer to this question. First, the word “marriage” carries several different meanings which are related to each other but conceptually distinct. The “fundamental right to marry” conundrum arises in part from the conflation of these various meanings. Second, the history of western marriage regulation—particularly the contemporary rejection of the traditional beliefs about sexuality and marriage that once provided principled boundaries for a right to marry—explains why the various meanings of marriage often are conflated today, and it suggests how the law can escape the “fundamental right to marry” conundrum. The Supreme Court should reinterpret the fundamental right to marry as referring to the practice of personal-marriage behaviors (cohabitation, economic partnership, joint decision-making, etc.) rather than state-recognized legal-marriage. This would preserve the entrenched idea of a fundamental right to marry while cohering wit! h the negative liberty nature of the Court’s other recognized fundamental rights and accommodating the reality that the Constitution does not (currently) textually define or even mention marriage in any way.
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