Supreme Court Same Sex Marriage Argumet

[Anima]

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!

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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.

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.