Marriage Isn't The Fundamental Right You Think It Is

We have all heard that marriage is a fundamental right. No government can stop two persons from "marrying" each other. However, government licensing of civil marriage IS NOT a fundamental right when no license is required to exercise that fundamental right, which, in this day and age, is the case. What is this fundamental right to marry? Historically, in our our culture and civilization, it has been understood, basically, as the right of a man and a woman to live together legally in a sexual relationship and have children. The US Supreme Court has affirmed this principle in all cases concerning marriage. This has been extended in some jurisdictions to include most any persons irrespective of gender.

As a marriage license is no longer required to exercise the fundamental right to live together legally in a sexual relationship and have children, then civil marriage, which is a statutory scheme conferring special governmental rights, privileges and legal conveniences – and another animal entirely –  is entirely at the state's option. No state is obligated to license and provide the statutory scheme that is civil marriage, as these neither permit nor deny the fundamental right of persons to live together legally in a sexual relationship.  To argue that the fundamental right of marriage imposes an obligation on the states to license and provide a statutory scheme that legally recognizes and approves the sexual and romantic relationships of persons in a committed relationship is an evident contradiction.

So, marriage in the sense of persons living together legally in a sexual relationship and having children must be understood to be the real fundamental right of marriage, and not the right to a license and a statutory scheme. As licensing of this fundamental right is no longer necessary to provide legality, nor an access, nor a barrier to its exercise, providing a license to civil marriage and its incidences cannot be interpreted to be an obligation on the states. If a state does exercise the option to license people's sexual or romantic relationships, then it is the state that decides, within the constraints of the state and federal constitutions, the terms and conditions of licensing. 

To see another way of why obtaining a license to civil marriage and the rights and privileges this procures is not a fundamental right, let’s take these texts from Loving v. Virginia and Skinner v. Oklahoma and substitute in the place of "marry" or "marriage" the phrase "[obtain or obtaining] special governmental rights, privileges and legal conveniences", which is the essence of civil marriage today. One should quickly see how preposterous this conception of  the fundamental right to marry really is:

"The freedom to [obtain special governmental rights, privileges and legal conveniences] has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."

"[Special governmental rights, privileges and legal conveniences] is one of the 'basic civil rights of man,' fundamental to our very existence and survival."

Taking a citation from the recent Wisconsin ruling, we get this:

Zablocki, 434 U.S. at 384 (“[The] right to [obtain special governmental rights, privileges and legal conveniences] is of fundamental importance for all individuals.”) 

Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-640 (1974) (“This Court has long recognized that freedom of personal choice in matters of  [obtaining special governmental rights, privileges and legal conveniences] and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”) 

Loving, 388 U.S. at 12 (referring to [special governmental rights, privileges and legal conveniences] as “fundamental freedom”)

Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (right to [obtain special governmental rights, privileges and legal conveniences] is “central part of the liberty protected by the Due Process Clause”)

 In Loving, 388 U.S. at 12,[T]he Court went so far as to say that [special governmental rights, privileges and legal conveniences] is “one of the basic civil rights of man." 

Maynard v. Hill, 125 U.S. 190, 211 (1888) ([special governmental rights, privileges and legal conveniences] [are] “the foundation of the family.”) 

This is utterly preposterous and laughably so! But if one were to substitute something of the order of "living together in a sexual relationship and founding a family" in place of "marriage" or "marry", then there would be no absurdity whatsoever. Let's try that:

"[living together in a sexual relationship and founding a family] is one of the 'basic civil rights of man,' fundamental to our very existence and survival."

This makes sense; the others do not.

Denying a license to civil marriage is not an infringement of the fundamental right to marry when the exercise of this fundamental right does not require a license in the first place.