This is the Kato Daily Podcast for Thursday, May 19th, 2011. I'm Caleb Brown.

Marriage is a fundamental right, and since it's a fundamental right states may not discriminate against some marriages.

That's the argument of attorney Ted Olson, former U.S. Solicitor General and current attorney for the plaintiffs in the case of Perry v Schwarzenegger.

We spoke at a Cato policy forum yesterday.

Why not let federalism be the thing that decides this, that let things settle out at the state level?

Well, because we have a federal constitution.

We would not have a constitution today

if we hadn't added a bill of rights. The people that were involved in the framing

of our Constitution were concerned that it did not include an enumeration of specific protected rights.

So we have a bill of rights and now the 14th Amendment which guarantees due process and equal

protection ensures all of our citizens no matter what states might do of equal protection of the laws.

If we didn't have that, people couldn't, many states were prohibiting a few years ago marriage

between persons of different races and that was struck down by the

Supreme Court.

We don't have a long history of gay marriage in the United States.

It's not one of those rooted traditional things.

Why is this a legitimate 14th Amendment challenge?

Well, you said gay marriage.

We have had a long history of marriage.

Since approximately 1888, the Supreme Court of the United States has 14 times said

that marriage is a fundamental right.

It's a right of liberty, it's a right of privacy, it's a right of association, it's a right of spirituality.

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