"Isn't the right to marry a civil right?"
The modern claim from homosexual advocates usually goes something like this: "Although the majority voted in favor of banning homosexuals from the PRIVILEGES of marriage, The Constitution, exists to protect the RIGHTS of the minority from the tyranny of the majority."
Well, what exactly is a "RIGHT"? A right is a just claim to something. The person who has a right has an appropriate claim to something that is the substance of their right. When we say there is a “just claim” to something that means there is some issue of justice that is involved in the claim—such that if you don't give them the claim then there has been an injustice.
There is two ways that there can be a just claim/right to something:
1.) Objective transcendent right.
2. Subjective human right.
Civil rights fall under the first category, and these rights are well established and apply to homosexuals as well. The million dollar question is, does "the right to marry" fall under the first category (objective transcendent right) or the second (subjective human right)? Let's consider some examples and define terms to provide some clarity here.
Example of 1.) Objective transcendent right:
These are the unalienable RIGHTS endowed by our CREATOR such as life and liberty. These rights are due to those simply in virtue of being human. These rights don't accrue in virtue of some circumstance, but rather they accrue simply in virtue of being a human being which is why we call it a human right. No effort is required on another person's part to qualify for a human right, no compensation is required of them to get that which is a human right, no obligation needs to be fulfilled by them before they can be properly afforded this which is a transcendent human right.
Example of 2.) Subjective human right:
You may have a right to drive a car and this is a right granted to you by the government. This is, of course, not a transcendent objective right; this is simply a subjective temporal right because it is a right in virtue of the way our human laws are constructed. There is no transcendent right to drive a car. This is something that is properly regulated by the government and they can give the right as they will. So if you fulfill certain obligations (meet required age, pass certain tests, etc.) you can claim that right and then get a license to drive. And if you are not allowed a license (after having met all the requirements) you can say your right has been violated. This is only in virtue of the fact that there is a human law that establishes the right; therefore, it's a temporal subjective right.
It should be obvious that the "right to marry" is NOT an objective transcendent right. If the right to marry was an objective transcendent right then nothing would be a requirement other than being a human. But we know there is an age requirement to marry so this right must be a subjective human right. Remember you can only claim your subjective human rights have been violated if you have fulfilled all the requirements established by that subjective law. If you have not met certain obligations ( required age, and any other subjective criteria decided by "THE PEOPLE") you cannot claim that right.
The only way a judge should overturn a subjective human law is if that subjective human law infringes on an OBJECTIVE TRANSCENDENT RIGHT. But as we have already seen, "the right to marry is NOT an objective transcendent law--it is a subjective human law.
In conclusion, the idea that the "RIGHT to marry" is a fundamental human right (i.e. objective transcendent right) is philosophically bankrupt, and therefore, nothing more than an appeal to emotions.