Is Marriage a Fundamental Liberty?

According to Dafydd at Big Lizards, no.

I don't care what the Supreme Court (U.S. or California) says: Any claim that marriage is a fundamental right or liberty contradicts itself. For the most obvious examples, if it were a fundamental right, then how could it be illegal for a brother to wed his sister? Shouldn't "strict scrutiny" apply to laws against consanguineous marriage, polygamy, polyandry, and even marriage with minors? After all, even kids have freedom of speech under some circumstances. Yet no court has ever even hinted at any such ruling. Any court that has ruled marriage a fundamental liberty is confused, contradictory, biased, bewitched, bothered, and bewildered.

....

Now we have Proposition 8 to vote upon a week from Tuesday. By a strange twist of fate, Proposition 8 reads: "Only marriage between a man and a woman is valid or recognized in California." If it passes, then the only option available to judicial activists will be -- to declare the California constitution unconstitutional under the California constitution -- a circumlocution that would be unprecedented and breathtaking in its absurdity.

If it fails, then we may as well conclude that the people have consented to same-sex marriage. I will think it a wretched decision; but the people have the right to make wretched mistakes.

I will accept the decision of the voters. Will the Left? Somehow, I doubt they will extend us that courtesy... and if they did, it would be unique in the annals of their own history. If Proposition 8 passes -- it currently leads in the polls -- then look for a jaw-dropping series of legal maneuvers to once again silence the tongues of the people, in preference to the vision of the anointed.