In Loving vs. Virginia (1967), the Supreme Court ruled that two people of different races could not be denied the right to marry. When homosexual couples use this case to support their position, Kohm and Yarhouse contend their argument is flawed if examined in light of the minimum requirements of the fundamental-rights doctrine.
Specifically, they argue that to constitute a “fundamental constitutional right,” two factors are necessary: 1. The right must be rooted in the nation’s history and tradition; and 2. it must be clear and distinct in the nation’s legal history. Therefore, according to the authors, homosexual couples are denied the fundamental right to marry, because they do not meet these cultural, historical and legal obligations.
Government, to summarize this position, should remain in the business of sanctioning traditional marriage, not solely because two people love each other, but primarily because of the historical, cultural and legal nature of traditional marriage itself.
— Stephen M. King, Ph.D., an adjunct scholar of the Indiana Policy Review Foundation, teaches political science at Taylor University.