On a recent episode of Liberty Counsel’s “Faith and Freedom” radio program, Mat Staver argued that marriage equality can’t be a fundamental right because it’s not “deeply rooted in our history that you have to protect it,” and in fact “homosexuality has always been considered a crime against nature” and “something that’s been criminalized in our culture.”
A fundamental right in constitutional law has to either be specifically articulated in an enumeration of the Constitution — so a fundamental right would be freedom of speech, freedom of religion, so it’s part of the First Amendment, it’s actually absolutely articulated — and if it’s not articulated, the court has said it has to be deeply rooted in our history such that if you were to not protect it, it would literally unravel the concept of ordered liberty that is so essential to who we are and it is so deeply rooted in our history that you have to protect it. Parental rights can be something that falls within a category such as that.
Now, here, obviously, the issue is, did same-sex marriage become a fundamental right? And the answer clearly is no. If they really were honest, it’s no. And to the contrary, same-sex marriage or homosexuality has always been considered a crime against nature. Instead of protection deeply rooted, it’s been something that’s been criminalized in our culture, not just in America but around the world.
Later in the program Staver discussed the recent appeals court decision striking down Virginia’s marriage equality ban with Liberty University Law School’s Rena Lindevaldsen. Lindevaldsen argued that because the court acknowledged that people in same-sex relationships sometimes raise children from opposite-sex relationships that it undermined the argument that being gay is a fundamental characteristic. “Now they’re saying, by the way, we can have relationships with whoever we want to and we still get this right to marriage,” she lamented.