Is there a fundamental right to marriage? That, we’re told, is the basic question behind the same-sex marriage business.
Unfortunately, that question doesn’t go far enough. Is there a fundamental right to marry whomever one chooses? That’s the real issue. And the answer is no. One can’t, for example, marry someone who can’t consent to marriage—a five-year old, for instance, or an insane person. Nor can a person marry someone who is already married to someone else, or otherwise marry more than one person at a time. And, at least in most places right now, a person can’t marry a member of the same sex.
In short, there is a fundamental right to marry, but there are all kinds of provisos and prerequisites having to do with whom one may marry. The fact that many same-sex marriage proponents continue to speak as if “the fundamental right to marry” has no qualifications betrays their fundamental confusion or disingenuousness on the subject.
Likewise, all the loose talk about how “equal protection of the law” requires legal recognition of same-sex unions in marriage. In fact, there is presently equal protection of the law when it comes to homosexual persons and marriage. They are not treated differently when it comes to marrying. Two heterosexual men can no more legally marry one another than can two homosexual men. Two lesbians have the same rights to marry men as have heterosexual women. For both heterosexual and homosexual persons, the law requires that marriage is between one man and one woman.
Of course, if one has a fundamental right to the state’s recognition as marriage of one’s lifelong commitment with another, regardless of the other’s gender, then those who have made such commitments are unjustly discriminated against if they’re unions aren’t recognized as marriage. 
But the equal protection argument simply begs the question. It assumes but does not prove that there is a fundamental right to the state’s recognition as marriage of one’s lifelong commitment with another, regardless of the other’s gender.
Critics have not proved unjust discrimination when it comes to defining marriage as a union of one man and one woman. But seeing this requires a willingness to see the civil purpose of recognizing marriage in the first place. That purpose is to privilege civilly those unions that are the kind of unions in which procreation of human beings occurs (i.e., heterosexual unions), even if, in particular cases, as a result of age, defect, or choice, procreation doesn’t in fact occur. There are civilly-pertinent reasons to encourage couples who regularly engage in the kind of acts that can generate new human beings to enter into the stable, permanent, and exclusive union we call marriage. Those reasons include creating a stable environment in which children can know and be raised by the man and woman who procreate them.
And in fact, same-sex unions and opposite-sex unions are in fact not equal, contrary to what federal judge Walker, who ruled against California’s Prop 8, supposes. At least, they are not equal when it comes to procreation of new human beings. There, opposite-sex couples have a decided advantage.
Nevertheless, Judge Walker thinks unjustly discriminatory the denial of same-sex people’s legal right to have their life choices recognized as marriage by the state. This is because he thinks that same-sex oriented people have some fundamental human right to enter into a lifelong commitment with people of the same sex and, here is the crucial part, to have the state recognize and compel others to recognize such unions as marriage. But Judge Walker provides no truly rational grounds for showing why “the fundamental right to marry” includes same-sex couples but does not include, say, the union of three or more people. He gives no sound reason why the state should not be compelled to recognize as marriage “lifelong” friendships. Indeed, for all intents and purposes, he gives us no reason why the state should be in the marriage-recognition business at all.
Why must civil law and society recognize that two people have decided to commit themselves to one another “for as long as they both shall live” or something less than that if they choose to divorce? Once the law has ceased to have as the underlying purpose of state recognition of marriage the fostering of stability, permanence, and exclusivity in the unions in which couples can engage in procreative kinds of acts, the law has largely, if not entirely, ceased to have a reason to be involved in the marriage business. Commitments to lifelong unions become, like commitments of friendship, private matters and not the business of the state.
By trying to make the case for same-sex marriage, proponents wind up undercutting the case for the state’s involvement in marriage at all.
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