Supreme Court Same Sex Marriage Argumet

[Anima]

I will add, regarding the "marriage as a fundamental right" argument:

Only Petitioners are making that claim.  Having just now reached the USA-as-Amicus's section, I think Attorney Verrilli makes a very good argument that this sounds in equal protection, not fundamental rights.  Of course, the heart of Petitioner's argument was equal rights as well.  I think if the court was to rule that a ban on gay marriage was an equal rights issue - which is far, far more likely than a ruling that it's a fundamental right - then there would be absolutely no problem at all regarding age.

I guess what I mean is, I never should have engaged in the argument about "would marriage-as-a-fundamental-right necessitate child marriage," because "marriage-as-a-fundamental-right" is an afterthought, and the real issue here is a particular restriction on marriage as violative of the Equal Protection clause

Regarding the equal protection argument. A violation of equal protection is made most apparent by considering the qualifier and then removing it to see if the answer remains the same. For example as regards to racial discrimination on marriage:

1. Can a white man and white woman get married = yes
2. Can a black man and black woman get married = yes
3. Can a white man and black woman get married = no
4. Can a black man and white woman get married = no

Now if we posit the question devoid of the discriminatory qualifier the answer must be the same otherwise it violates equal protection clause:

5. Can a man and woman get married = yes/no (violates equal protection)

Applying the same method to a sexual orientation qualifier:

1. Can a straight man and straight man get married = no
2. Can a gay man and gay man get married = no
3. Can a straight man and gay man get married = no
4. Can a straight woman and straight woman get married = no
5. Can a lesbian woman and lesbian woman get married = no
6. Can a straight woman and lesbian woman get married = no

Again we ask the question without the qualifier. If the answer is the same than there is no violation of equal protection:

7. Can a man and man get married = no (does not violation of equal protection)
8. Can a woman and woman get married = no (does not violation of equal protection)
9. Can the same gender marry = no (does not violation of equal protection)

There is no violation of equal protection.

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Completely irrelevant.  That's the negligence standard.  A child cannot consent to sexual activity with an adult at age 5.  A child cannot enter into a contract at age 5.  A child own or purchase property at age 5.  Or age 10.  Or age 15. 

If a child "consents" to drive a car and hurts someone, we hold that child to an adult standard when it comes to paying for damage.  That's completely irrelevant to whether the law "allows" a child to "consent" to driving a car without a license, which it certainly does not.

Actually a child can enter into a contract. The contract is unenforceable against the child but remains enforceable against the adult. Since the child may break the contract at will without it being considered a breach while efforts by the adult to break the contract at will would be considered a breach it is common for adults to not enter into contracts with children. Which is not the same as not being legally permitted to. (This is a common first year law and bar exam question. Also something you might want to take advantage of the next time you sign a contract ).

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Completely irrelevant.  That's the negligence standard.  A child cannot consent to sexual activity with an adult at age

As I stated before, and is argued by the petitioners. Marriage is not about sex. Thus, agreement to the marriage contract is not agreement to engage in sexual activity.