Texas Review of Law & Politics, Volume 20, Number 1, Fall 2015 Page: 66
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Texas Review of Law & Politics
"[e]xcluding same-sex couples from marriage ... conflicts with a
central premise of the right to marry."288 While raising and
protecting a family is certainly central to marriage, so is creating
that family. And procreation, whether directly or indirectly, is
required to create families. Perhaps this is why "recent cases have
directly connected the right to marry with the 'right to
procreate."289
The fourth and final principle is that Supreme Court cases and
"the Nation's traditions make clear that marriage is a keystone of
our social order."290 Quoting a case from the nineteenth century,
the Court emphasized that "marriage is 'the foundation of the
family and of society, without which there would be neither
civilization nor progress."'291 This, of course, presumes the
traditional definition of marriage. And while the Court recognized
that the "States have contributed to the fundamental character of
the marriage right,"292 it did not explain why, if that is true, the
Court can usurp the right to regulate marriage from the states. As
ChiefJustice Roberts put it, "[t] he fundamental right to marry does
not include a right to make a State change its definition of
marriage."293
The Court also declared that the "limitation of marriage to
opposite-sex couples may long have seemed natural andjust, but its
inconsistency with the central meaning of the fundamental right to
marry is now manifest."294 It is not clear, however, how the
traditional definition of marriage morphed from something
natural and just, to something inconsistent with the fundamental
right to marry. To the contrary, it seems more accurate to conclude
that the fundamental right to marry originates from the traditional
definition of marriage. The Court referenced marriage precedents
(Loving, Turner, and Zablocki)295 to explain why, in this case, it chose
not to follow the precedent established in Glucksberg to carefully
288. Id. at 2600.
289. Id. at 2614 (Roberts, C.J., dissenting) (quoting Zablocki v. Redhail, 434 U.S. 374,
386 (1978)).
290. Id. at 2601.
291. Id. (quoting Maynard v. Hill, 125 U.S. 190, 211 (1888)).
292. Id.
293. Id. at 2611 (Roberts, C.J., dissenting).
294. Id. at 2602.
295. The Obergefell majority indicated that in each of these cases the Court "inquired
about the right to marry in its comprehensive sense." Id. Yet, as Chief Justice Roberts
recognized, "the 'right to marry' cases stand for the important but limited proposition that
particular restrictions on access to marriage as traditionally definedviolate due process." Id. at
2619 (Roberts, C.J., dissenting).66
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University of Texas at Austin. School of Law. Texas Review of Law & Politics, Volume 20, Number 1, Fall 2015, periodical, September 2015; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth839390/m1/80/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.