General Discussion
In reply to the discussion: Gay people can have multipartner relationships too. [View all]prayin4rain
(2,065 posts)no. Substantive due process concerns fundamental rights which require strict scrutiny.
Past case law has declared marriage a fundamental right, but because it was tied to procreation. Same sex marriage is not deeply rooted in history or tradition, nor tied to a "real" fundamental right.
NO couple, same sex or opposite sex, truly has a FUNDAMENTAL right to have the state recognize their couplehood or confer benefits on them.
But marriage has been fundamentally important to our nation's history and citizens. And having been so conferred for over a century, it should not be easily abolished or applied in a discriminating fashion.
Equal protection alone = civil unions
Fundamental right alone = states being able to say no marriage, because a state conferring benefits is obviously not a fundamental right.
Synergisticly Together = states should have marriage, they can pass other laws regulating it, states cannot discriminate
He went to due process to preserve "marriage" though, yes. I think so.