Thomas wrote:In Skinner v. Oklahoma, the court had invalidated an Oklahoma law under which the state sought to castrate Skinner, a habitual small-time criminal. That case was at its core about the fundamental right to procreate. So Loving does specifically mention procreation. Its point about the basic civil right rests on it, and arguably never applied apply to gay marriage. Same sex marriages never were "fundamental to our very existence and survival".
Well ... no. You're right that
Skinner is a procreation case. But it is
only a procreation case. The single mention of marriage is Douglas's statement that "Marriage and procreation are fundamental to the very existence and survival of the race." To the extent, then, that
Skinner has anything to say about marriage, it amounts to
obiter dicta (i.e. a statement that is not relevant to the holding, and therefore without any precedential effect).
Consequently, Warren's citation to
Skinner as supporting the notion that marriage is a fundamental right was, strictly speaking, improper, since
Skinner didn't actually rule that marriage was a fundamental right. Indeed,
Skinner didn't even hold that procreation was a fundamental right: the majority struck down the Oklahoma statute on the narrower ground that it violated the equal protection clause of the fourteenth amendment (Chief Justice Stone, in contrast, argued that the court should have held that procreation was a fundamental right by deciding the case under the due process clause).
Warren also cited
Maynard v. Hill in support of his contention that marriage is a fundamental right. Unlike the
dicta in
Skinner, however, the
Maynard opinion doesn't say anything about procreation being the sole or main object of marriage. If anything, Justice Field, the author of the
Maynard opinion, identified the object of marriage "as having more to do with the morals and civilization of a people than any other institution." For Field, then, marriage was fundamental to society (but not a fundamental right -- Field never says that) because it was all about morality, not about procreation.
In sum, then,
Loving is the first case that explicitly rules that marriage is a fundamental civil right. In effect, Warren (in the very brief section II of his opinion), adopts Chief Justice Stone's argument in
Skinner. Whether he also adopted Douglas's rather tenuous rationale for justifying marriage on the grounds of procreation, however, is doubtful at best. Warren, after all, states that "The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." It seems more likely, then, that Warren saw marriage as part of the right to "pursue happiness," rather than as based on the narrower grounds of procreation and the "survival of the race."
Thomas wrote:Loving's equal protection argument seems to provide a much stronger argument against the exclusion of gays from the institution of marriage.
Maybe. The court in
Lawrence v. Texas, for instance, found that state sodomy laws violated the due process clause, not that they violated the equal protection clause. The court specifically declined to address the issue on equal protection grounds, stating "Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants." If marriage is a fundamental right, however, there can be no way that a state could "draw the lines differently" to achieve a result acceptable under equal protection grounds. In other words, if the state sought to avoid granting marriages to homosexuals by outlawing
all marriage, its action would still run afoul of the due process clause.
