Marriage is not, and never has been, a personal right. In Western society, it operates at two levels. First, it functions at a religious level. This is a deeply personal level, because in every religion, marriage is, or is equivalent to, a sacrament. In America, you have the Constitutional right to be married in the church of your choice — if the church doctrine allows your type of marriage to be performed. A further Constitutional right is that the state cannot force a church to change its doctrine to accommodate your desires.
Second, marriage functions at a state level. The state has an interest in encouraging marriage because a dynamic state needs a growing population, and the best way to assure that is to have men marry women and have babies. (Even polygamy has that point behind it: in ancient times and primitive cultures, with excessively high maternal and child mortality rates, you wanted to ensure that as many women as possible are breeding. Polygamy advances that cause with a vengeance.) Married men are also a more stable population: they are more likely to defend, rather than attack, the home front, because they have acknowledged children to protect. (You see, marriage means that a man knows who his children are.)
To advance the benefit it receives from married couples — increased children, and a stable male population invested in protecting the country — states create marriage incentives. They embrace religions that advance marriage and they give financial incentives and status recognition. These perks are not for the individual’s benefit or freedom; they are for the state’s benefit and strength.
The problem arises when people conflate the deeply personal nature of the religious marriage ritual with the highly political nature of the state’s interest in productive heterosexual marriage. When this happens, they suddenly start babbling about personal rights in and from the state where none existed before.
The state can, of course, determine that its interest is served by any marriage and that encouraging gay couples to settle down will advance some state interest. But when I say “the state can,” I really mean that, in a democratic society, “the voters of the state can” determine that it is in their collective interest to extend to all comers the right to a state sanctioned marriage. The one thing that should never happen is that judges, to advance their own personal biases, create a personal right where none has ever existed before.
Two further points regarding this issue. First, read Stuart Taylor’s excellent explanation of why the California Supreme Court decision was a strikingly dishonest piece of judicial activism.
Second, if this judicial activism offends you, vote for John McCain. And don’t fall into the trap of thinking that, because only liberal justices are old enough to leave the Court, Obama won’t be able to harm the Supreme Court if he’s elected for four, or even eight years. Bad things happen. It is entirely possible, although God forbid it should be so, that right in the middle of the Obama presidency, Roberts, Scalia, Alito and Thomas could all drop dead from freak accidents or illnesses. Even if that happens to only one of them (again, God forbid), Obama will have the ability to change the Court in ways that will certainly affect the Court into your grandchildren’s lifetimes, and possibly change the separation of powers forever.