(June 10, 2015 at 3:05 pm)Cato Wrote: I've been giving the idea more consideration and think the state interest in marriage for the purpose of bonding children to their biological parents is untenable.
States issue marriage licenses to divorcees with children wishing to remarry (Assume procreation, for whatever reason, is not possible between the new couple.). The rationale given for state interest is not satisfied in these circumstances. Will this practice be abandoned? Assuming the answer is 'no', what then would be the reason for denying a divorcee with children a license to marry someone of the same sex?
Marriage of divorcees, infertile, or the elderly does not violates the states interest due overinclusivity. This was covered earlier.
As stated by respondents, Overinclusivity does not in and of itself constitute invidious discrimination and violation of the Equal protection. Under the States procreation centric definition the state guarantees 100% inclusion of the desired parties. The fact this definition is overinclusive and results in the inclusion of other non-desired parties (infertile and elderly couples) or is underinclusive and excludes other couples does not constitute invidious discrimination. Even if that underinclusiveness excludes 100% of another group as determend by the Supreme court in Bray V Alexandria.
Respondents further stipulate, to inquire as to the procreative abilities or intentions of particular parties would be a violation of 4th amendment rights to privacy. As such the state may satisfy its legitimate interest by means of a definition it knows will cover the possibility of procreation. Arguments of hysterectomy, vasectomy, or natural infertility due to defect or time are considered changes of fact which would lead to such minutia of the laws as to render it untenable or intrusive. It thus falls upon the state if it is willing to accept the over or under burden of the definition in order to achieve its intended goal.
(June 10, 2015 at 3:05 pm)Cato Wrote: Invoking an idea that same sex marriages should be illegal because they might impact the rate of traditional child bonding marriages when the states have no problem with no fault divorces that absolutely do destroy this supposed bond seems misplaced if not outright contradictory. If this procreative bond is so prescient to the state interest in marriage, why didn't it carry the day considering no fault divorces?
Under rational basis scrutiny this is more than sufficient. The reason why is that the court did not want people suing for every law they did not like. This would cause a conflict and violation of the seperation of powers as the legislature would need court approval for every law. As such under rational basis it is held by the court that the legislature acts rationally to accomplish some legitimate end. Furthermore, under rational basis any rational relation will do! No matter how tenuous or (you are going to love this) even if not thought of by the legislature. If the court can make any tenuous relation between the state interest and the discrimination than rational basis is satisfied!