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[DISCLAIMER: In any discussion of rights it is always understood that rights can be restricted when there is a compelling government interest in doing so because of the harm that the exercising of those rights may/shall cause another. For example each citizen has the right to freedom to exercise religion, but does not have the right to harm another through human sacrifice. On the other hand there is no government compelling reason which would allow government to dictate religious ceremonies (which harm no one) because of the protections embodied in the 1st Amendment.]
With that said
"fundamental to our very existence and survival"
Lets take a look at the use of this phase from the Loving decision. Some would have us believe that this phrase centers on the ability of a couple to procreate together as a necessity to being able to enter into Civil Marriage.
But is that what its really saying, to determine that lets take a closer look at the application of the phrase but instead of snipping it out of the decision, lets place it into context as to how it was actually used.
II
These statutes also deprive the Lovings of
liberty without
due process of law in violation of the Due Process Clause of the Fourteenth Amendment. 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.
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this
fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly
subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to
deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the
freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the
freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.
These convictions must be reversed.
Homosexuals have been around since time immemorial, yet the human race has never depended on them as a core element of breeding stock. With over 7-BILLION humans on this Earth, the idea that we heterosexuals will stop breeding because homosexuals are extended equal treatment under the law is not a logical position to take.
So as we examine the phrase "fundamental to our very existence and survival" it becomes oblivious that what is fundamental to our existence and survival applies to us as a free society and not to the question of procreation.
The principles and rights that the SCOTUS did enumerate in the decision as being basic civil rights that are fundamental to our existence apply to what values do we hold dear and guarantee to each and every citizen. So what concepts was the SCOTUS referring to when they used the phrase? These are the things they were talking about as they apply to society and not the idea that procreation was a condition of Civil Marriage:
Liberty
Due Process of Law
Freedom
Personal Rights
Pursuit of Happiness
Fundamental Freedom
Subversive of the principle of equality
Deprive all the State's citizens of liberty without due process of law
Freedom to marry
Liberty of course being one of the unalienable rights listed in the Declaration of Independence. Due Process, Equality and Equal Protection being rights listed in and embodied in the 14th Amendment. Pursuit of happiness (not to be confused with attainment of happiness) again, one of the unalienable rights listed in the DOI. Along with the fundamental concept that rights are held by the citizens even if not enumerated in the Constitution (9th Amendment) with it then being understood that all citizens inherently have rights and that it is the governments responsibility to provide why rights should be denied as a basis for establishing that compelling interest previously mentioned.
When read in context those items that the court was referring to as being fundamental to the very existence and survival were not a couple having a functioning male sex organ and a functioning female sex organ. What the court was talking about as fundamental to our survival was holding close the concepts a liberty, equality, justice, and freedom. That if we allow the government too capriciously and invidiously establish laws barring equal treatment under the law for a select group (without a compelling government reason), then we as a society will have lost some of those core values and the courage to defend those values even against an unpopular (by some) sub-section of society.
The court found that denying such a fundamental right based on a biological condition such as race could not be supported based on a compelling government interest. The question that the SCOTUS will some day have to address is whether denying such a fundamental right can be denied based on gender, another biological condition.
When I taught my children the Pledge of Allegiance so they would know it before their first day of Kindergarten, I taught them that the ending was With liberty and justice for all, not that it was With liberty and justice for some.
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