Hi CC ... glad you enjoy our exchanges. They're interesting for me as well.
So, once, again, Loving v. Virginia expressly held that marriage is a fundamental right under the 14th Amendment's due process clause:
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Loving v. Virginia is still good law, as it has not been overruled on this proposition. You're right in contending that just because something is held to be "fundamental right" under the substantive due process clause does not mean that it cannot be regulated by the government (through voter passed intiatives or otherwise). It does, however, mean that regulations affecting fundamental rights will be held to a higher standard than other government regulations, and will be subject to what is known as "strict scrutiny" in the courts.
As explained by Justice Scalia in the 1996 case, United States v. Virginia 518 U.S. 515 (quoting Clark v. Jeter, 486 U.S. 456, 461 (1988)): Again, since marriage has been deemed a fundamental right under
Loving, state classifications affecting that right will be subject to strict scrutiny analysis.
Strict scrutiny, in turn, requires the government to show that the law or regulation in question is narrowly tailored, that is, it employs the "least restrictive means" to achieve a "compelling" government interest.
In
Loving, the fundamental right affected was marriage, and the regulation at issue was race. In the current debates, the right affected is again marriage, but the regulation in question is gender/sexuality. So under the strict scrutiny test, the government will have to answer the question: is regulation of marriage based on gender the least restrictive means to achieve a compelling government interest?