Adam Seagrave recently argued that there is no fundamental right to marry. He criticized Supreme Court decisions to the contrary on Lockean grounds. Fundamental rights are rooted in self-ownership, Seagrave argues, and are therefore inherently individual rights. The right to marry is not an individual right, is relatively new, and is inconsistent with America’s political tradition.
Whether or not Locke would approve of it, there is a fundamental marriage right. It is ancient, not recent. And it secures the integrity of the natural family. Seagrave’s resistance to the Court’s expansive substantive due process doctrine, which secures what Justice Brandeis called “conditions favorable to the pursuit of happiness,” is laudable. But his proposal to dispose of the Court’s marriage jurisprudence would throw the baby—and the baby’s mother and father—out with the bathwater.
Like the rights to life, liberty, and property, which Seagrave affirms, the right of marriage is a so-called negative right—a liberty secured against outside interference by a perimeter of claim rights. It correlates with the duty of those outside the natural family, including the state, to abstain from interfering with marital and parental rights and duties, absent an adjudication of divorce, neglect, or abuse.
This liberty is fundamental because it secures a complex of jural relations—rights and duties of the natural family—that are part of our fundamental law. It is truly a right, for it is pre-political, and it imposes upon the state a duty of abstention. In assessing its legitimacy, one should examine its operation as a conclusive reason within law and the lineage of the right within fundamental law—in other words, the legal authority by which it is settled and specified.
The Court’s substantive due process jurisprudence, with its artificial and increasingly arbitrary balancing tests, is not a helpful starting place in thinking about this. The due process clauses are not the source of fundamental rights. They protect some rights that are found in sources of law external to the Fifth and Fourteenth Amendments, plus some others that the Court has invented without any basis in law.
A better starting place is Washington v. Glucksberg, in which the Court explained that a fundamental right is one that is so deeply rooted in our nation’s “history,” “traditions,” and “conscience” that it is “implicit in the concept of ordered liberty” such that “neither liberty nor justice would exist” without it. To understand whether a right is fundamental we must look to that part of our law that originates in our history, traditions, and conscience.
Fundamental Rights and Duties
Fundamental rights originate in fundamental sources of authority. In our Anglo-American legal tradition, those sources are primarily divine law, natural law, and customs so ancient that the memory of man runs not to the contrary.
Rights and duties that are part of our fundamental law would be rights and duties—they would have the authority of law—even if no lawmaker ever posited them in statutes or constitutions. To the extent that positive law incorporates those rights and duties it is, in Blackstone’s parlance, merely “declaratory” of those pre-existing norms.
Many (though not all) of our fundamental legal norms are beyond the reach of positive law, and lawmakers are not competent to overrule or disregard them. In his Commentaries on the Laws of England, which exercised an enormous influence on the laws of the American states, Blackstone insisted that:
no human legislature has power to abridge or destroy [natural rights], unless the owner shall himself commit some act that amounts to forfeiture. Neither do divine or natural duties (such as, for instance, the worship of God, the maintenance of children, and the like) receive any stronger sanction from being also declared to be duties by the law of the land. The case is the same as to crimes and misdemeanors, that are forbidden by the superior laws, and therefore styled mala in se, such as murder, theft, and perjury; which contract no additional turpitude from being declared unlawful by the inferior legislature. For that legislature in all these cases acts only . . . in subordination to the great law-giver, transcribing and publishing his precepts. So that, upon the whole, the declaratory part of the municipal law has no force or operation at all, with regard to actions that are naturally and intrinsically right or wrong.
What Blackstone called “superior” law emerges as part of our own “fundamental” law in a definite strand of the Supreme Court’s rights jurisprudence. In Glucksberg, for example, the Court rejected a claim that the Constitution contains a fundamental right to assisted suicide, largely because our unbroken common law tradition condemns suicide as malum in se, a crime that is inherently wrong, and thus contains a fundamental duty not to kill.
The Court did not invent this doctrine in the twentieth century. The common law’s superior legal norms, along with much of the customary law of England, were brought to the American colonies and formed the basis of our laws at the time of the Founding. Thus, divine and natural rights and duties, ancient customs general and local, and our written Constitution, together formed our fundamental law.
James Stoner has explained:
we think of the Constitution as fundamental because it establishes the rules by which laws are made, as well as rules that limit lawmaking. At the time of the Founding, by contrast, common or unwritten law was the basis of the law in all the colonies, with legislation understood as its supplement or its corrective.
After independence, the states chose to retain, adopt, and adapt the common law. Thus, “Political discontinuity overlay a basic continuity of legal order.”
The Court has followed this conception of fundamental law—law that is older than, and foundational to, our political institutions—when describing the rights of marriage and parentage. “Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.” (Moore v. City of East Cleveland) The collective families proposed by Plato and practiced in Sparta are “wholly different from those upon which our institutions rest.” (Meyer v. Nebraska) The natural family’s sanctity is located within the freedom to “marry and reproduce,” which “is older than the Bill of Rights.” Therefore, “the liberty interest in family privacy has its source, and its contours are ordinarily to be sought, not in state law, but in intrinsic human rights.” (Smith v. Organization of Foster Families for Equality and Reform)
For these reasons, it is not “within the competency of the state” to infringe the fundamental rights of marriage and the natural family. (Pierce v. Society of Sisters) It was to this jurisprudence that the Court referred in Loving v. Virginia when it struck down Virginia’s criminal prohibition against inter-racial marriage.
As Stoner observes, what we mean by “fundamental law” has changed since the time of the Founding. Yet as Glucksberg and the marriage cases demonstrate, the older strand of reasoning about fundamental law, firmly grounded in our conscience, traditions, and customs, persists in the Supreme Court’s fundamental rights jurisprudence, somewhat uncomfortably, alongside its better-known cousins, substantive due process doctrine and supremacy clause jurisprudence.
Fundamental Rights, Civil Rights, and Marriage
In Blackstone, rights to life and limb, liberty of movement, and private property ownership are civil rights, protected by law in exchange for the subject’s relinquishing of the analogous rights he would have enjoyed in a state of nature. Blackstone and American jurists, such as James Kent, called these “absolute rights.” This means that no person can be deprived of them except according to the law of the land, and then only after being afforded that process which is due to one whose absolute rights are placed in jeopardy.
The rights and duties of marriage and biological parentage (to which Kent added sanctity of conscience) are even more directly fundamental than civil rights. They are among those divine and natural rights and duties that positive law merely recognizes, does not create, and may not alter.
Civil marriage is a species of contract, Blackstone explained, but the rights and duties of civil marriage do not exhaust the rights and duties of marriage. Most of the rights and duties of marriage are settled and specified by nature and nature’s God. For Blackstone, the “most universal relation in nature” is that between biological parent and child, and it proceeds from the first natural relation, that between husband and wife. Thus, the entire complex of jural relations among husband, wife, and children within the biological family is part of the superior law, which comprises part of our fundamental law. Positive laws that affirm those jural relations did not create marriage, they merely declared what was already true about marriage and the rights and duties comprising it.
The common law has erected secondary securities around those natural rights and duties. In addition to parental rights, the common law has recognized spousal privileges, actions for alienation of affections and for kidnapping, and other legal incidents that stand guard around marital and parental relations. Though the family’s resulting liberty is not itself part of the natural law, it is nevertheless part of our fundamental law, which we inherited from England, and is grounded in that part of the fundamental law that the state is not competent to alter.
In the twentieth century, the most comprehensive threat to the family’s integrity came not from adulterers and kidnappers but from a growing regulatory state, which claimed increasing power to govern family life. So, it is no surprise that the natural family’s right of integrity came to be asserted against governments in cases such as Meyer and Loving. The right was not novel, only the identity of the duty-bearer.
Preserve the Marriage Right
In legal scholarship, the edifice of common law norms is sometimes referred to as a “cathedral.” Perhaps the cathedral needs to be renovated from time to time. But before we start knocking down any walls, we ought to ensure that none of them is weight-bearing.
Nothing is more fundamental to our legal edifice than the ancient liberty of the natural family. The new right of “same-sex marriage” will undermine the rational bases for many of our positive laws governing marriage. But it cannot undermine the fundamental liberty of the biological family, because it cannot eliminate the natural rights and duties in which that liberty is grounded. We should preserve the fundamental marriage right for the sake of our communities and the rule of law.