As we have seen, the right to marry is well established. Kenneth Karst enthusiastically proclaims, “Of course there is a right to marry.” Also, Mark Strasser observes, “The question then is not whether the right to marry is fundamental – it clearly is – but whether the fundamental right to marry includes the right to marry one's same-sex partner.” The more appropriate question, however, is “Why would same-sex marriage not be included under the fundamental right to marry?” In a nation in which the right to marry is constitutionally protected for convicted criminals and parents who fail to make court-ordered child support payments, the right to marry must mean, at a minimum, that the state bears the burden of explaining why gays and lesbians cannot exercise this right.

Three related explanations have been proffered for the exclusion of same-sex marriage from the right to marry:

1. The right to marry is a predicate of the right to procreate and raise children in a traditional family setting.

2. The ability to have children is at the core of marriage.

3. Marriage is by definition dualgendered.

This chapter shows that these arguments quickly collapse in the face of analytic scrutiny. The next three sections examine each argument in turn.

The Right to Marry as a Primary Right

It has been suggested that the right to marry is a predicate to other rights, rather than a right in and of itself.