One of the matters lurking around the Supreme Court’s oral arguments this week is the degree to which marriage is a fundamental right. Gay marriage advocates argue that marriage’s fundamental nature demands that the state has an obligation to extend such a recognition to homosexual couples.

Whenever a fundamental right is abridged, a strict scrutiny analysis is conducted and government must provide a compelling interest. If it can do so, it then has to justify that its infringement is both narrowly tailored and that it is the least restrictive means of achieving its stated objective. This is a very high bar for the government to clear and such analyses begin with the presumption of unconstitutionality.

There are apparently fourteen cases in which the Court has used similar kinds of language to describe marriage as a fundamental right. If this is so, the gay marriage argument suggests that the Court will determine the government does not have a compelling interest to treat homosexuals differently, and/or that even if it does have such an interest, there are other means available (civil unions?) for government to achieve its objectives that are either more narrowly tailored or less restrictive of the right to marry.

One of the briefs submitted to the Court before oral arguments addressed this question in a forthright and specific fashion. The Center for Constitutional Jurisprudence, with John C. Eastman as lead counsel, argues that marriage is indeed fundamental (start on page 25), but that it does not apply to homosexual couples. The argument is that in the cases in which the Court refers to marriage as fundamental, like Loving v. Virginia, where the Court struck down state-wide bans on inter-racial marriage, it is deemed fundamental because of its inherently procreative nature and because of its social and cultural importance as the dominant manner in which children are raised and the species is perpetuated. In this sense, denying the right to couples of a different race did not survive constitutionally because it prevented them from exercising their freedom to reproduce within the recognized marital context.

If homosexuals seek to appeal to marriage as fundamental, then, they are doing so even though they are, as a class, unable to fulfill the characteristics that define the freedom as fundamental initially. In this sense, according to Eastman, homosexual couples are not “similarly situated” to other couples, like the one in Loving, who were denied on the basis of a status that had nothing to do with procreation. So, “strict scrutiny” would not necessarily be triggered in such a situation.