Supreme Court Same Sex Marriage Argumet

[Anima]

All it says it the government cannot prohibit interacial marriage there is no reason why they can't change it to say the government may not restrict any marriage between to legally competent and consenting adults.

Sorry I missed this.

It actually does not say that the government cannot prohibit interracial marriage. While we often think it would be nice if it were that simply it would also be very vague and not comport with justice.

What it is stipulates is that in accordance with the 4th (privacy) and 14th (equal protection) amendment protections, the government cannot interfere in private relationships without just cause (4th) and may not discriminate against a protected class (14th) without satisfying strict scrutiny. By which the government must have a compelling interest, narrowly tailored, that is the least restrictive means of satisfying that interest, and is related to that interest.

Now in regards to your question specifically.

1. The government does not want to intervene in the relationship of same-sex people. Same sex people want the government to be a part of their relationship by means of recognition and benefits. This is against the ruling held in Maher V Roe.

2. The governments compelling interest in "marriage" is in the offspring which are future citizens of the state and to be protected. The government has no interest in the private personal relationships of adults only. As supported by Roe V Wade and Lawrence V Texas.

3. The case of interracial marriage Loving V Virginia had to due with the private intimacy of a married couple. The law at the time in Viriginia prohibited interracial intimacy, not interracial marriage. The law was against miscegenation. The Court stated that the discrimination based on a protected class (race) means the state's restriction on interracial intimacy had to satisfy strict scrutiny, it failed to do so on have a compelling interest. Since the state had no compelling interest to discriminate the court ruled the state also had no just cause for invasion of the privacy of the marital bedroom.

4. The case against marriage that is same sex , polygamous , and incest do not involve a discrimination based on a protected class. So they do not need to pass strict scrutiny. Rather, they only need to satisfy rational basis scrutiny. Rational basis stipulates that the state must have a legitimate interest (for marriage it is in the offspring) and that the discrimination must be reasonably (even if tenuously) related to this interest.

Now the point that is being argued about adult/child marriage is that if marriage is defined as a fundamental right, like all fundamental rights it may be exercised by person over the age of 5 and does not require parental consent (all though it is preferable).

If petitioners win their case the following will happen. Marriage will be redefined as recognition and security centric, no longer procreation centric. Marriage will further be consider a fundamental right of all people to be exercised over the age of 5. Those directly follow and cannot be avoided if the petitioners win their case.

Based on these changes it is entirely possible and reasonable that for the sake of addition security to the child (or a means to avoid taxes ), an adult would endeavor to marry a child over the age of 5 to gain state recognition of their adult/child relationship conferring additional benefits and security. If the state refuses to permit this marriage it will be taken to court where as a fundamental right the discriminatory treatment must pass strict scrutiny it will have to explain why it has a compelling interest. The state will say it has an interest in the safety of the child. But remember marriage is no longer procreation centric. So agreement to marriage does not mean agreement to sexual intimacy. Marriage is now about recognition and and security. So the state would be trying to argue that it has an interests in the child's safety that it will promote by denying the child extra security.


Furthermore, the change in definition you initial purposed would no prohibit polygamy, bigamy, or incest marriages.