(June 10, 2015 at 11:19 am)Anima Wrote: Respondents argument that is reasonable to believe that just as no fault had an impact changing the understanding of marriage from one of permanency, by means of shifting the focus of marriage from permanent for the raising of children to temporary depending on the adult whims (rather than child needs), resulting in more children being raised in broken homes.  So will the further shifting of marriage from a procreation centric (bonding of parents together with their children and one another) to a recognition centric (public recognition of a private relationship) of the adult relationships (of all marriages) further result in marriage being more about the adults whims than the children's needs increasing the likelihood of divorce and children raised in broken homes.

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?

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?

Women who become pregnant via donor insemination are permitted marriage licenses to infertile men. What rationale is then used to deny a lesbian couple in the same circumstance from marrying?

States also have no problem issuing a license to a woman that had a hysterectomy and a man that has had a vasectomy. The procreative centric state interest doesn't seem to be an issue here either.

(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!

Anima,

I think you're misrepresenting Bray as it would pertain to existing laws prohibiting same sex marriage. The decision hinged on the fact that there are reasons to oppose abortion other than derogation of the protected class; in this case women. I think the legal reasoning you're employing would be sound in the same sex marriage case if the state laws only allowed marriage to couples with the potential to procreate (keeping the stated state interest in mind). If the laws were structured in that manner then the inclusivity and burden of enforcement considerations you mentioned would be valid, my disagreement with such laws notwithstanding.

The laws prohibiting same sex marriage were enacted specifically to exclude a specific class of people from marriage. The well worn 'for the children' rationalization becomes all too clear when you consider the second sentence of the Ohio amendment (the first being defining marriage between one man and one woman):

Quote:This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.

Claims that this law is not invidiously discriminatory simply fall flat.

Is..he just gonna ignore the consenting adults incest question?

(June 10, 2015 at 4:31 pm)FatAndFaithless Wrote: Is..he just gonna ignore the consenting adults incest question?

That's par for the course a lot of times at AF, but I'd give Anima the benefit of the doubt. He has multiple lines of conversation going and my interaction suggests that he takes time to give things thoughtful consideration, including digesting linked information. (Anima, if you're reading I do intend to get to the parental rights article you referenced).

(June 10, 2015 at 4:31 pm)FatAndFaithless Wrote: Is..he just gonna ignore the consenting adults incest question?

I will have to get to it when I am not at work and blocked by the company filter!

---

(June 10, 2015 at 4:29 pm)Cato Wrote: Anima,

I think you're misrepresenting Bray as it would pertain to existing laws prohibiting same sex marriage. The decision hinged on the fact that there are reasons to oppose abortion other than derogation of the protected class; in this case women. I think the legal reasoning you're employing would be sound in the same sex marriage case if the state laws only allowed marriage to couples with the potential to procreate (keeping the stated state interest in mind). If the laws were structured in that manner then the inclusivity and burden of enforcement considerations you mentioned would be valid, my disagreement with such laws notwithstanding.

Bray was in regards to the subject of disparate impact. Under Bray the Supreme court ruled that 100% disparate impact does not in and of itself constitute invidious discrimination. The respondents further allude to this in regards to Roe V Wade. Privacy in regards to abortion impacts women only and not men. Thus 100% of men are excluded from the benefits conferred by Roe V Wade. Now if disparate impact was not permissible than Roe V Wade could not convey any benefit to women that men cannot exercise.

Since the states may not inquire as to the fertility of couples or their procreative intent the definition of marriage in recognition of biological realities (Nguyen V INS) may be made to cover all potential parties whose copulation may result (intended or unintended) in offspring. That is to say hetero copulation (even if not performed by person of hetero orientation). The overinclusiveness of this definition is its inclusion of infertile couples of any age. The underinclusivness of this definition is the exclusion of couples which have no inherent potentiality to result in offspring (same sex couples). The respondents argue this is the case since the marriage laws in the states involved in the suit defined man and wife as far back as 1789 (this was pointed out by the 6th Circuit ruling) and simply reaffirmed in 1996. As such they say in accordance with Roe V Wade and Bray V Alexandria that 100% exclusion does not in and of itself constitute invidious discrimination.

(June 10, 2015 at 4:29 pm)Cato Wrote: The laws prohibiting same sex marriage were enacted specifically to exclude a specific class of people from marriage. The well worn 'for the children' rationalization becomes all too clear when you consider the second sentence of the Ohio amendment (the first being defining marriage between one man and one woman):

Section 15.11 - Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.

I assume you are talking about the bold part. In which case you would love what was said in US V. Windsor oral arguments. Scalia asked the petitioners lawyer when it became illegal to prohibit same sex marriage. She had no answer. But when the solicitor general came up (he was arguing along side the petitioners) he said it happened when states created civil unions thereby establishing a second type of "marriage." He argued that states like Texas (and Ohio) were not in violation of equal protection because they did not create a second type of "marriage".

However, I do not see how the second sentence is clear indication of invidious discrimination. It is a clear statement that marriage shall be recognized as being defined by the first sentence and no proxy of marriage shall be recognized in the state of Ohio for any couple be they hetero, homo, or otherwise.

Okay. Having just read more about laws and legal theory about incest than I ever planned to in this life time the following is stated in regards to incest between adults of legal age:

1. A bunch of the jurisdictions I read throughout the US and Europe general argument is that incestuous relations are anathema to the biological di-hybrid nature of our species and that of higher order mammals as to be considered inherently offensive and wrong.

2. Many of the jurisdictions throughout Europe make the argument to genetic defects, these jurisdictions tend to be the same jurisdictions which do have laws requiring person be of a specific fitness to engage in the marriage contract (no people with genetic traits known to substantially increase the likelihood of genetic abnormalities).

3. Minority of jurisdictions hold that incestuous relations are never consensual even among adults. Arguing that the relationship between parent and child (even an adult child) establishes a special duty of protection and position of authority of the parent such that engagement in sexual relation with the child (even an adult child) is always coercive or (and this i thought was interesting) any engagement of an adult child with an elderly adult parent or grandparent constitutes a coercion by the child of an elderly adult of diminished capacity or dependency equivalent to that of the original parent child duty. (I never really considered that an adult would try to coerce there elderly parents in to incestuous relationship, but apparently it has happened.)

4. The majority of the jurisdictions basically utilize overinclusivity in regards to incestuous relations between adults. In short the legislature has determined the majority of incestuous relations are coercive (adult to child or older sibling to younger) and have past legislation stating that incestuous relations are illegal and prohibited in accordance withe states legitimate interest in protecting children and adults from coercion to improper or illegal conduct. This prohibition is overinclusive and includes adults in non-coercive incestuous relations. However, there is little motivation from the general populace on legislatures or courts to try to distinguish coercive incest from consensual incest.

(June 10, 2015 at 5:15 pm)Anima Wrote: However, I do not see how the second sentence is clear indication of invidious discrimination.  It is a clear statement that marriage shall be recognized as being defined by the first sentence and no proxy of marriage shall be recognized in the state of Ohio for any couple be they hetero, homo, or otherwise.

Although this sentence would necessarily include heterosexuals as you pointed out, heterosexuals have the option of marriage denied to homosexuals in the first sentence. The express purpose of the second is to deny homosexuals the state conferred legal benefits and standing attending the qualities, significance, and effects of marriage. I could accept that the design of marriage would dovetail nicely with the procreative centric state interest argument, but the other three highlighted cut against the Respondent argument that the state recognition of marriage is in no way dignity bestowing. I don't have a crystal ball, but I have to imagine this is where the Respondents lost Kennedy.

Roberts vote is a bit trickier to assess. If I remember correctly, during the procreative centric discussion there was a tacit admission that the Respondents considered adoptive relationships inferior to biological relationships. Roberts is an adoptive parent. There's no way of knowing what significance Roberts will give this.

(June 11, 2015 at 11:23 am)Cato Wrote: Although this sentence would necessarily include heterosexuals as you pointed out, heterosexuals have the option of marriage denied to homosexuals in the first sentence. The express purpose of the second is to deny homosexuals the state conferred legal benefits and standing attending the qualities, significance, and effects of marriage. I could accept that the design of marriage would dovetail nicely with the procreative centric state interest argument, but the other three highlighted cut against the Respondent argument that the state recognition of marriage is in no way dignity bestowing. I don't have a crystal ball, but I have to imagine this is where the Respondents lost Kennedy.

The sentence does not discriminate against homosexuals. The law does not care about orientation. This is evidenced by the definition of marriage not being limited according to orientation but according to biology. Parties of opposite sex may marry (in recognition of the biological potentiality of offspring Naguyen V INS; not just hetero orientation of parties).

You may be right in that Kennedy did not accept respondents argument that the state does not confer dignity in the sanctioning of marriage. Legally the respondent is correct in this assertion as legal conference of marital status does not convey sociological dignity. An interesting unintended consequence of the argument that marriage confers dignity is that all who are not married are lacking in dignity in relation to those who are married and it is the laws fault!!!

(June 11, 2015 at 11:23 am)Cato Wrote: Roberts vote is a bit trickier to assess. If I remember correctly, during the procreative centric discussion there was a tacit admission that the Respondents considered adoptive relationships inferior to biological relationships. Roberts is an adoptive parent. There's no way of knowing what significance Roberts will give this.

Respondents really went out of their way to stress that adoption is a separate state issue and that adoptive parents are not inferior to biological relationships (I believe the respondent even said people who adopt are heroes!!). Respondents went on to say that adoption is dealing with a factual situation where children have already been separated from their biological parents. However, both petitioners and respondents argue that marriage is separate from adoption. Petitioners so as not to be required to adopted for marriage, and respondents under the procreation centric argument.

(June 11, 2015 at 11:35 am)Anima Wrote: An interesting unintended consequence of the argument that marriage confers dignity is that all who are not married are lacking in dignity in relation to those who are married and it is the laws fault!!!  

Dignity isn't a finite resource that is parceled out whereby if someone receives dignity there is less to go around elsewhere. Single people aren't less dignified in the eyes of the state simply because the state also confers dignity to the married couple's relationship. The problem is that since the state does confer a measure of dignity to the relationship those that are expressly prohibited from participating in the institution are denigrated.