We here in the news and from a number of lawyers and citizens different ideas about what civil rights are and on what basis to judge what is or is not a Constitutional Right. The answer, as I will lay out, is straight forward and clear.
Our founding fathers had a clear definition of what rights should be guaranteed by the Constitution and should be decided even if only a minority support them. They used a clear framework that have remained in use even through today. A decision providing rights for same-sex marriage would be a radical deviation from the law.
Our Declaration of Independence is the first major document that must be considered in this analysis. The Declaration says that certain rights are inalianable rights. This is the first defining by Americans of what new rights are. They are described in two ways. First, by specific types of right given: Life, Liberty, and the pursuit of happiness. Second, by their source: the Creator. Most of our legal analysis these days has been focused on the types of rights protected and not the source. Historically, the source has been equally valid.
The Source of our rights can be viewed as God or Mother Nature or as a Creator in a generic sense. There is no intention to exclusivily take one religious possition or another to see what an unalienable right is. By the very definition, it should be a right that is clear from nature and from how the Creator has designed the world. No dogma or denomination or religious sect is needed to see what is evident in Nature.
As to marriage, what is evident by nature? It is clear. Humankind was made in two different physical types. Man and woman. Man and woman each have their own reproductive organs that are different from one and other and only combined can create a child through the act of nature. It is impossible for 2 men or 2 women to do this. It is not the way that nature designed it.
A black man and a while woman can make a child. Same in reverse. Nature is clear in the answer to interracial marriage. It is equally clear in requards to gay marraige in that it is impossible by nature and therefore cannot possibily be a right intended by mother nature, God, or any religion's concept of the functioning of creation.
When we look at the consitution, it provides for protection of rights to life, liberty, and property. Marriage is associated with a right to property. The right of ownership of the children who result from sexual relations. The property rights of the mother to have financial support from the father and from the father to be allowed to be invovled in raising his children. In the rights of the children to have parrents. There is a clear right there.
For homosexual couples, they do not by nature generate children. Yes, they could adopt or use artifical means. At which time, they would have a type of right claim; but not a source of rights claim. In other words, it is possible for gay couples to have a vested interest in their partner and in financial and legal situations associated with their partner; however, having a particular type of interest is not enough to grant a right. There must also be the Creator as the source of that interest. In this case, the child would not be the natural child of the gay partner and such rights are not inherent to how the Creator designed the world. Rather the interest proceeds from the people involved attempting to work against the natural order of nature. Hense, while their may be 1 of the 2 needed conditions of having a right (the type of right), there lacks the 2nd condition (the right being in accord with the way the world was created/with nature).
Future proposed consitutional rights should follow the same analysis. Simply identifying a type of right should not be enough. The right must be in accords with natural workings of the world. The issue for gay marriage should not be soly a question of is there an interest by the parties to have a legal recognition; it should also evaluate if the interest is part of the design of nature. In this case, the design of nature is to continue the existance of the human race on earth via men and women procreating; and marriage is a right designed to ensure that the property rights of each in reguards to children being produced, raised, and educated are maintained. The property right of the woman is the support of herself and child. The property right of the man is his genetic contribution, the right to pass on himself through his child through raising and educating the child, and the right to ensure the child he raises and educates is his. These rights are not based on a rational evaluation of government; but are clear from nature and require no logic or thought to see. Hense the whole idea of unalianable rights.
In the issue of a gay union, it is impossible through nature to procreate children; thus there is no clear, unquestionable, natural property right of one person over another. There is no reason to see a duty by one female of the two in a 2 woman union to bear the children, and the other to support or vice versa. Where is the naturally clear obvious duty of the one to bear the children while the other does not? Is there a physical difference to show? In a natural marriage, it is clear the woman would bear the children and one needs no special contract or skills to see which does. For two men or two women, what harm is done if one or both cheat? Is there risk that one may support the child of their partner thinking it is their own? That would be impossible as they cannot generate children together and therefore it would be clear the child is not theirs. What claim would one have on a child birthed by another that is any greater than the claim of a child birthed by a hetrosexual couples's woman by another man?
The clear truth is that there is no rational basis for arguing that a consitutional right exists for gay marriage because the source of all rights -- the Creator -- has not created such a right in nature.