An important misconception: the question is not the 'right to marriage'. As regards the state, there is no such right. No court has held that people have an inalienable right to have the state of 'marriage' recognized by the government.
The right at issue is the right *not to be discriminated against by the law*. It's not incumbent upon US governments (federal, state, whatever) to recognize a state called 'marriage' at all. They could simply choose not to do so, and that would not violate anyone's rights.
However, they do choose to do so - and in so choosing, they assume a responsibility to do so in a non-discriminatory way. The law defines a *legal* state called 'marriage', it has nothing to do with the religious conception of marriage and very little to do with any social or philosophical conception of it. The *legal* state of marriage grants various privileges to those the law considers to be married: tax breaks, power over each other's affairs in certain cases of incapacity, the right not to testify against each other in court, hospital visitation rights and various others (someone came up with a very exhaustive catalog of hundreds of privileges granted by the law to people it considers to be 'married', somewhere). That's all it does. It doesn't compel anyone's religious or social convictions: it's a legal transaction between two individuals and the state.
Granting this state to those whose stable relationships are with people of the opposite sex, but not to those whose relationships are with people of the same sex, seems pretty clearly discriminatory to me. And that's what all the court decisions so far have found: not that gay people or *anyone at all* has an inherent 'right to marriage', but that if a government decides to be in the business of recognizing a state called 'marriage' and granting things to those it considers to be in that state, it must do so in a non-discriminatory way.
The pernicious thing about Prop 8 and its supporters is that it was precisely not about "personal" opinions or beliefs or whatever. It was about enshrining those beliefs in law - forcing them on others. You don't have to believe it's right for two people of the same sex to be married in order to support legal marriage equality, you just have to recognize that it's not the law's job to encode beliefs like that.
Re: Well said
The right at issue is the right *not to be discriminated against by the law*. It's not incumbent upon US governments (federal, state, whatever) to recognize a state called 'marriage' at all. They could simply choose not to do so, and that would not violate anyone's rights.
However, they do choose to do so - and in so choosing, they assume a responsibility to do so in a non-discriminatory way. The law defines a *legal* state called 'marriage', it has nothing to do with the religious conception of marriage and very little to do with any social or philosophical conception of it. The *legal* state of marriage grants various privileges to those the law considers to be married: tax breaks, power over each other's affairs in certain cases of incapacity, the right not to testify against each other in court, hospital visitation rights and various others (someone came up with a very exhaustive catalog of hundreds of privileges granted by the law to people it considers to be 'married', somewhere). That's all it does. It doesn't compel anyone's religious or social convictions: it's a legal transaction between two individuals and the state.
Granting this state to those whose stable relationships are with people of the opposite sex, but not to those whose relationships are with people of the same sex, seems pretty clearly discriminatory to me. And that's what all the court decisions so far have found: not that gay people or *anyone at all* has an inherent 'right to marriage', but that if a government decides to be in the business of recognizing a state called 'marriage' and granting things to those it considers to be in that state, it must do so in a non-discriminatory way.
The pernicious thing about Prop 8 and its supporters is that it was precisely not about "personal" opinions or beliefs or whatever. It was about enshrining those beliefs in law - forcing them on others. You don't have to believe it's right for two people of the same sex to be married in order to support legal marriage equality, you just have to recognize that it's not the law's job to encode beliefs like that.
-adamw