Supreme Court Same Sex Marriage Argumet

[Anima]

If there is not currently any law regarding intention/ability to procreate, why is this being brought up by anyone? I got married fully intending to never have children, and I won't. Or is there actually a law about this? If there is, it needs scrapping as it is fucking ludicrous. I'm in England so it may be different, but is someone going to tell me that if I announced my intention never to have children I wouldn't be allowed to marry? I find this very hard to believe. And anyhow, same sex couples can still have children via surrogates or donors. So what difference does it make? Does the law say they not only have to have children, but they must be a 100% DNA match?! How exactly was this enforced before DNA testing I wonder?

As stipulated in a previous post. Anthropologically and legally speaking the purpose of marriage was to determine the legitimate heir for matters of legal inheritance. The reasons for this vary and may be as simple as the average person only living into their 30s up until about 100 years ago to as complicated as avoiding wars of legitimacy to royal heirs. Thus, it has always been held in cultures throughout the world that marriage is in regards to offspring or procreation centric.

Respondents argue that the only reason the state has any interest in the subject of marriage is in its procreative effects. Since the authority of the state governs the populace the populace of the state is quintessential to its being. Now the fact that you in particular do not want to and never intend to have children but still got married would mean you fell under the overinclusiveness of the law. Laws must be as general as possible while still be specific enough to not unduly burden everyone. The supreme court has ruled that if a law is not narrowly tailored, but does not impose undue burden than it is overinclusive and does not violate equal protection. For example, Affirimative Action was primarily meant to encourage racial integration. The primary benficiaries of affirmative action has been white women who are classified as minorities under the women class though there is not much history of white women be under privileged.

The law does not require you to have children (even in England). Because, fertility of person could not be inquired or verified early on. Regarding your specific paternity question (http://en.wikipedia.org/wiki/Legitimacy_...29#History)

"In English common law, Justice Edward Coke in 1626 promulgated the "Four Seas Rule" (extra quatuor maria) asserting that, absent impossibility of the father being fertile, there was a presumption of paternity that a married woman's child was her husband's child."

Think of it like getting pre-approved to bypass security I would recommend reading up on English common law regarding marriage. It is rather extensive and very interesting. Furthermore it serves as the foundation for American common law on the subject.

The class of people who can currently get married are adult men and adult women. It's just that some combinations within that class are being excluded for no good reason. If the law doesn't recognize this as discrimination, then it should, in my opinion. To say there is reason for them to be different genders is to say that the two people are not entering as equal parties to the marriage, that they somehow are fulfilling different roles which require specific genders. This is archaic religious nonsense and should have nothing to do with secular marriage, in my opinion. Like I said, you're discriminating against one party, whichever way round you look at it. You're not applying a rule that is the same for every individual, so it is discrimination. Or you could look at it that you are discriminating against pairs of people, for no good reason. They both individually meet the criteria to marry another person, but together they get rejected. However you cut it, it's blatantly wrong. I've not heard anything like a decent argument as to why the status quo should be kept.

1. The law allows for discrimination under reasonable, hightened, or strict scrutiny. It is recognized in law that every law is not meant to include every person in them. So to allow for tailoring of the laws the Courts have determined thresholds which must be met to justify a given discrimination.

2. In regards to marriage the sufficient level for discrimination is called rational basis. Rational basis states that the discrimination does not violate the equal protection clause and is no unjustly discriminatory if the state has a legitimate interest and the discrimination is reasonably related to the furtherance of that interest. In the case respondents state their only interest is in its procreative capacity to produce offspring/population and the discrimination is reasonably related to this interest. Furthermore this reasonable relation need not be universe changing, profound, or undeniable. It may be of the most tenuous reasonable relation (this is the rule of the court to keep from requiring the court to review every reason for every law). Which is to say it is not for no good reason, but for a recognized good reason (which you may or may not agree with).

I'm sure the law does not totally agree with me, but that is plain as day as far as I'm concerned. The age of the participants is not involved in any of this. Sure, we can examine if it is still a good idea to keep an age minimum. But this is not discrimination because the rule applies equally to any person who wants to get married, for their own protection. It applies to both genders. And yes, it's there for an obviously good reason. I don't understand why anyone would think otherwise, except for bogus problems with the law. Children still need protecting from making commitments they may not yet be mentally capable of making. Whether or not they can have children has nothing to do with it, or shouldn't.

The age of the participants become involved when you argue a fundamental right. One of the first things that will happen if a fundamental right is established is that the limits of that right will have to be defined. Who does it apply to, how old do they have to be for it to apply, when does it apply, when does it not apply, etcetera. Once initial definition is made it will be tried which will lead to litigation on the subject to test and verify the definition. Fundamental rights apply to children as well as adults so if marriage is a fundamental right it will apply to children. Furthermore the law does not prohibit children from entering into contracts. In fact it is bias in favor of children that contract, because the law allows the child to ignore the contract after entering while the adult cannot.

If we wish to say children may not exercise a fundamental right to marriage it will have to satisfy strict scrutiny. Under strict scrutiny the state must have a compelling interests, the discrimination must be narrowly tailored, the discrimination must be least restrictive, and the discrimination must be related to the interests. If we further state that marriage is not procreation centric, but is legitimization of relationships or security centric than what is the state interest in keeping children out? We do not want the relationship between children and adults to be legitimized or secure?

In short, resistance to children engagement in marriage is due to a procreation centric view of marriage, which petitioners are arguing against. Under a legitimization or security centric view any prohibition on children entering marriages with adults would fail strict scrutiny (which it must now pass to withhold a fundamental right) because the only interest the State has in the marriage in regards to children is in the protection of the children, which marriage will foster as it is security centric.

Again, I'm sure the law is way more complex than I can comprehend. But to me the facts of this are really simple and the next step is straightforward. Why on Earth would removing arbitrary discrimination mean you have to re-evaluate other factors that aren't discriminatory? And even if you do, age clearly stands up to any well adjusted person, so it's done. (In the simple world in my head). I really can't see how this is a "precedent" to anything else. If someone thinks the age needs to be changed, well that's a separate issue for them to bring up. Why tag it onto this debate? It smacks of desperation to me (of any legal party bringing up this issue.)

Again, the original discrimination was not arbitrary, it was meant to serve a particular purpose. What is to be determined is if that purpose was valid and if that purpose is still served without that particular discrimination in place. Also, as expressed above, age would not clearly stand up as a discrimination in marriage that will continue under a fundamental rights non procreation centric definition.

By the way Anima, I'm not debating your opinion here. I don't even know what your opinion is. I'm asking for clarification about what you are saying the law is, and my outrage if it is as you say it.

If you want to share your opinion, please do If you are against it I'll happily debate your reasons.

We can get to that eventually. I am presently more interested in arguing the court arguments than my own