Many arguing for the courts to strike down Proposition 8 argue that there is a "fundamental right to marry" which is violated by not neutering the concept of marriage and mandating that same-sex unions be legally called "marriages". But, if it is held by the Court that this "fundamental right" must mean that marriage must be neutered---a qualitative leap in the historical understanding of marriage totally different from anything done by the Loving decision (as it essentially says not just that all individuals or all couples are equal, as is contended, but either that marriage must privilege procreative and non-procreative sexual contact equally, or that it does not privilege sexual contact at all)---have they given much thought to just what that would mean, and what it would not mean?
Remember, we are not just talking about the issue of whether or not we think neutering marriage is a good idea. We are talking about whether or not there is a "fundamental right" to this qualitative change in the meaning of marriage, a right so fundamental that it cannot be voted down by the public.
Would this also mean that the following situations could not be voted down by the public:
1. A measure to lower the legal age of marriage by just one year, say, from 17 to 16?
2. A measure to allow first cousins to marry, in a state which had not allowed it before?
3. A measure to allow three person marriages, but only among adults, and only if all three parties had agreed to all other parties being included?
Note that measures 1 and 2 involve changes to our understanding of marriage which are far less radical (that is, they require only quantitative leaps rather than qualitative ones) than is the change involved in neutering marriage. And while measure 3 does involve a qualitative leap, it is objectively impossible to say whether it is a greater or lesser one, and it is historically far less radical than the leap involved in neutering marriage.
How could we justify allowing the public to vote on measures 1, 2, or 3, but not on the neutering of marriage?
Rights cannot be given by the state, therefore they cannot be modified by the state either. If marriage is not a right, who is the state to decide to whom this privilege may be granted? Marriage predates the United States of America and the concept of marriage can be found in almost every civilization, not just those with a Christian background. Is it necessary and proper for any government at any level to standardize the ritual and concept of courtship? If state-sanctioned marriage is necessary though, what is the justification for placing married couples in a class apart from individuals?
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