Casebooks and treatises have properly noted little change in recent years in the positive law governing the formation of marriage. What change there has been in the various state laws has involved mostly adjustments of age requirements, waiting periods, or administrative matters. If one looks behind and beyond these various minor changes, however, to the United States Supreme Court, to the learned writers, and to teh Uniform Marriage and Divorce Act, one sees that a banner has been raised over the slowly shifting minutiae of American marriage law. The banner is one of the gaily colored pennants of the pursuit of happiness, on which Loving v. Virginia has inscribed "Freedom to Marry" and "Marriage – a basic civil right."Repeal Loving v. Virginia! Allowing blacks and whites to marry destroyed marriage as an institution within 9 years!
But for this language, Loving v. Virginia would have been an unremarkable application of the equal protection clause of the fourteenth amendment. But the Court's languge seems to have struck a chord. The case now is widely understood as calling into question much state regulation of marriage, for if marriage is a "basic civil right," iti is constitutionally protected. Congressman (then Dean) Drinan saw the Loving decision as having given constitutional status to a "profound consensus in American society that the state and the law should say as little as possible about who should marry whom." Commemtators, analyzing existing impediments and inducements to marriage in the light of Loving, have found affinity prohibitions indefensible, and restrictions based on physical or mental capacity, remote consanguinity, age or recent divorce questionable.
In general, states have avoided the imposition of conditions concerning an individual's personal characteristics that would eliminate entirely the possibility of marriage. Instead the law has restricted the legal eligibility to marry through age, consent and waiting period requirements and by stipulating that the physical or mental conditions legally preventing marriage must be cured before marriage can take place.
Turning from state regulation of the ability to marry to regulation of the number and choice of spouses, one finds a similar pattern of minimum regulation. The right to choose one's spouse is complementary to the right to marry, Long before the institutionalizatio of "freedom to marry" [Loving], legal restrictions on a person's field of possible spouses were diminising. At the present time, the only absolute prohibitions in the Uniform Act and the great majority of states are those based on kinship and currently existing marriage.… Even the prohibitions against bigamous and incestuous marriages have in fact become less absolute than is generally believed. One other category, homosexual marriages, is not permitted, though it generally is not expressly prohibited either.
The [plural] marriage prohibition still stands, but the sanctions for simultaneous polygamy [contrasted with the commonplace serial polygamy of remarriage after divorce] have begun to be softened in three ways. First, the legal effects of a marriage entered int violation of the prohibition are beginning to approach the legal consequences of marriages that are not prohibited. For example, the children of such a union in most respects will be treated as legitimate children. And if proceedings are brought to declare the marriage null, support comparable to that awareded in a divorce proceeding may be ordered in certain cases. Second, the attitude of the states toward such marriages, as expressed through the criminal law, may be growing less harsh. FInally, the Uniform Marriage and Divorce Act has abolished the traditional public policy exception in its conflict of laws provision. Consequently, foreign simultaneously polygamous marriages can be recognized.
Down with the insidious notion that marriage is a fundamental right! I demand that the federal government assert that marriage is a privilege to be handed out by federal bureaucrats at their whim!
We cannot allow miscegenation gays to tear apart our moral fiber!