To decide whether a right is “fundamental” under the due process clause, the Supreme Court requires two things. The first is a carefully worded description of the “asserted fundamental liberty interest.” Second, such rights must be “deeply rooted in this Nation’s history and tradition.” The right must also be “so rooted in the traditions and conscience of our people” that “neither liberty nor justice would exist if [it was] sacrificed.”
No state contemplated redefining marriage until Hawaii in the mid-1990s, and the first American marriages of this kind took place in Massachusetts in 2004. It seems fair to conclude that any right to same-sex marriage is not deeply rooted in this country’s history and traditions, and thus no such fundamental right exists.
Excellent.