Nation-wide there has been state by state emphasis that there is no right to marry who you choose (see: age of consent, no beastiality, no polygamy (I choose to marry these 100 people), etc. to all the various non-occurrences of marrying who you choose. There is no constitutional right to marriage at all, hence it being a state issue, leaving the states to define it as they will (IE: X state chooses to allow polygamy, another doesn’t).
The 14th amendment has had a history of issues regarding standards of review dependent on the type of right being examined and who it is being examined about. Your relevant text, sadly, leaves out the entire case history behind the amendment, which makes this a bit harder, but I’ll try to clarify. When looking at a 14th amendment claim, certain classes of people get an immediately stronger standard of scrutiny as a form of protection. What does that mean? Let’s say there is legislation somehow relating to race, or to a race of people. Per the 14th amendment case history on standard of review, those immediately receive a standard of ‘strict scrutiny’, meaning the courts will look at the litigation/statute in question and by default protect the race, unless there is a HUGELY compelling government interest + a very narrowly tailored law or decision, such that it is basically the least invasive way to enact the desired goal (if they can think of another way, you lose). So whether or not there is a protected class is of severe importance when looking at a 14th amendment reasoning behind a court decision. The class status directly effects the sort of freedom or restriction a class gets on examination.
The fourteenth amendment has nothing to do with extending all privileges to all individuals equally. Not everyone can carry a concealed permit (unless they go through certain training – and even then must be of a certain age). Not everyone is grabbed by the draft. Not everyone can apply for a public defender. Not everyone can travel freely (see sex offenders).
The result of the law isn’t at all what the fourteenth amendment is about – it doesn’t take a conclusory view. The Fourteenth amendment is about the application of law and how far it discriminates to the point of actually refusing certain people certain services on purpose. One of the issues with marriage is this: “Anyone can get married”, says X state. What does married mean? Well, it so happens State X defines marriage the classic Webster way, which is to say between a man and a woman. So now anyone can get hetero-married (I say it like this as to emphasize that homo marriage is not included, I know it sounds silly, but I think it helps keep the discussion clear so there isn’t confusion). Gay person X says “Hey, I can’t get married to Steve, my big gay man-lover!”. State X says “Wat? That’s not marriage. You have as much a right as ANYONE ELSE to get married. Our application of the law is not discriminatory. If you choose to go up to the altar with Mary-Sue and get married, we won’t stop you”. And so State X does not engage in discriminatory practices, and nothing in the 14th amendment is broken at all.
Yet notice, even ignoring that and looking at the 14th amendment application still – we don’t allow certain types of marriage, IE a 80 year old man to 7 year old Liza-Lou, who he plans to bang on his wedding night with his old flaccid grandpa-cock. Strange, seems like we’re now breaking the 14th amendment, and not allowing those two the same equal rights all others have. It’s like we are okay treating different age ranges differently, or inequally. Why? Because they aren’t viewed as a protected class under case law, meaning that we see no issue discriminating with them there. Were the younglings a protected class, the review of their issue would change entirely. I mention this to show, again, the significance of the protected class argument.
But, if you want to take your view and use just the literal text of the 14th Amendment – WHICH I DON’T MIND, I ALSO LIKE SCALIA, SO WE ARE BROS IN THAT REGARD – then we have a lot of other issues to address, as there are many people not getting equal privileges to others.
Absent that, I’d still argue the 14th has nothing to do with giving everyone the same privileges. It’s about not having any law that keeps a privilege from X but not from Y, when X and Y are otherwise viewed as equally protected classes. So to craft the 14th amendment and use it against the form of argument I mentioned, you’d first have to establish marriage as something that extends beyond male-female, and argue that a hetero marriage is the same as a gay one, etc. – Which can be very difficult to do given the way law and history tend to intertwine – ESPECIALLY since you chose the textualist approach, meaning you’re going to have to use the traditional definition – which seems like a self-defeating argument, but I’m sure you know something I don’t.
If you want a brief review of how classes of people matter when comparing under the 14th, I’d suggest the very short and summarized: [
www.law.cornell.edu]
Otherwise, [
law2.umkc.edu]
Mini tangent semi-unrelated - I have a lot of issue with the "right" language as is, and I think people toss around "right" way too much, I take a more Kelsenian view, while still maintaining a lot of the harm principle stuff that Mill likes.