Recently – in a very heated session – the Senate Judiciary Committee approved the Marriage Protection Amendment. This amendment would basically tell the States that they are not allowed to recognize same-sex marriages. It would also be the first amendment in U.S. History created specifically to establish a restriction on a fundamental human right.

In light of the fact that the States currently regulate marriage:

Would this marriage amendment violate the 10th Amendment?

Clarification- can an amendment violate an amendment? Technically, wouldn't they both be constitutional?

Point is moot- would never pass- just don't have the votes nationwide

Would this marriage amendment violate the 10th Amendment?

To put it bluntly: No.

The Tenth Amendment says:



A marriage amendment would, by definition, make this a power delegated to the United States by the Constitution.

The argument would be with the 14th Amendment:



But again, amending the Constitution would strip away this argument, I would think.

It seems pretty clear to me that such an amendment would, by definition, be constitutional. This is why I oppose it so strongly. It would be the final nail in the coffin for extending marriage to same-sex couples. As things stand now, I have a tiny flicker of hope, a single candle lighting the dark.

Fortunately, I don't think this has any chance at all of actually becoming part of the Constitution. It's a good way to win the hearts and minds of social conservatives, but little more.

I don't see how a constitutional amendment could be illegal, but I am completely opposed to a gay marriage amendment.

I don't think such an amendment would be wise. Except for the prohibition debacle, this amendment doesn't blend with the fabric of the constitution.

No, it would not violate the 10th Amendment (United States Supremacy Clause states that the national government will hold precedent over states if necessary). It would however violate the 14th Amendment (Equal protection under the law)

The 14th Amendment:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Clearly, a "Marriage Protection Amendment" violates the 14th Amendment.

'Nuff said.

If Congress really wanted to 'protect marriage', they would be focusing on the very high divorce rate in this country, not this issue. They would be making adultery criminal, and creating severe penalties for violating what should be the most sacred oath one takes in their life - 'for better, for worse, in sickness and in health, until death do us part.' 50% of marriages in this country end up in divorce. What marriage needs protection from is this, and there's absolutely no evidence that gay marriage does anything to undermine this. In fact, often quite the opposite.

Gay couples can be as stable as straights

Did gay marriage destroy heterosexual marriage in Scandinavia?

What's more, evidence indicates that even in places where gay marriage is allowed, currently few couples take advantage of it.

Why So Few Gay Marriages?

So, this amendment is not about protecting marriage. It is about politics. If it were really about protecting marriage, it would seem that they should be advocating mass conversion to Islam:

Wikipedia states that
.

Think that would go over politically?

As an aside, I have been wading through Kevin Phillip's American Theocracy, which lays out a very strong case of the power and impact of religion on American politics. I don't think its influence can be denied, and this bill is clearly a result of that influence.

I oppose the amendment, but there's no question that it'd be constitutional if it passed. But it won't. The votes are totally not there.

I could've supported the Hatch substitute amendment, which would not have banned gay marriage, but only have forbidden it being imposed by courts. IMO changing the marriage laws should be done by state legislatures or citizen initiatives, not by the courts.

Would this marriage amendment violate the 10th Amendment?

No, as others have said, a Constitutional amendment cannot be unconstitutional.

I oppose this amendment, and I'm happy that it has virtually no chance of being ratified. I think the definition of marriage should be left to the states, to decide in a normal political process. My state legislators favor same-sex marriage (not surprising, since I live in San Francisco), and it's one of the few issues I agree with them on.

Ironically, I think this so-called "Marriage Protection Amendment" would have been more likely to pass if Kerry had beaten Bush in 2004. Hear me out. Kerry wins, O'Connor retires, and Rehnquist dies, on schedule. Instead of Roberts and Alito, we get, say, Lawrence Tribe and Stephen Reinhardt. With Scalia and Thomas as the only conservatives on the court, it would be very tempting for a gay couple married in Massachusetts to move to some homophobic state, and file a lawsuit to force their new state of residence to recognize their marriage.

It's easy to imagine the arguments and precedents. Equal protection, full faith and credit. Loving v. Virginia, Lawrence v. Texas. I think they would have had a good chance of winning, and imposing same-sex marriage on the entire country.

And that is the only way this amendment could pass: as a backlash against judicial activism. Fortunately, Bush has given us a reprieve on that.

The proposed amendment would violate neither the 10th Amendment nor the 14th Amendment. Re the latter, may I simply ask the rather obvious question that some would like to avoid, to wit, does the state have an interest in its continuing existence? Yes, the state does, as a matter of fact, the state has a rather compelling interest in its continuing existence. And so the state acts to encourage and protect marriage, and it does so in order to first encourage and protect procreation and then to ensure that the resulting children themselves live to reproduce [and so we have those benefits attending marriage and the tax write-offs for children, not to mention any number of aid programs for children and their parents]. And that's why discrimination against homosexual couples in terms of marriage and those benefits usually stemming from the marital relationship is hardly unconstitutional. Oh, and by the way, for those who like to make that rather lame and inapt comparison to racial discrimination, since two blacks, two yellows, two reds, and two whites, can each have children, provided they are of the heterosexual persuasian, racial discrimination is not even in the same universe (as it were) as is sexual preference discrimination. And, lastly, some might try reading those cases disposing of the legal challenge[s] made by taxpayers filing singly, who complained of being discriminated against vis-a-vis those married taxpayers filing jointly. They lost because the state has an interest, a rather compelling one, in encouraging and protecting heterosexual marriage. Sorry, one more. We prefer marriage over mere paternity [as it were] precisely because the child[ren] have a better chance of surviving to reproduce in an intact family than they do without such a family.

You could take up boxing with that reach, Kivrot. Here's what baffles me. What exactly are they(you) protecting? This argument treats homosexuality and gay marriage like it is some sort of virulent infection. "Let one of em do it, and soon we'll all be gay and married to our brothers." 'Cause we all know if we let gays marry and adopt kids, the heterosexual folks will just stop getting married and makin babies. Or worse, they might become gay too! This reminds me of the graduation scene in "In & Out" when the entire auditorium admits they must be gay because they all liked a teacher who happened to be gay. Admittedly, seeing Wilford Brimley say "I'm gay" is darn funny. This argument, however, is not.

This amendment is repugnant on face, but to actually answer the question, I would say such an amendment would in fact not violate the 10th. The answer lies in the process vs. the actual powers issue as it relates to Federalism. You see, if enough states ratify the amendment, they are expressing approval for the assertion of Federal power and embedding said power in the text of the Constitution. If anything, I could see a strong case for the Defense of Marriage Act (DOMA) violating the 10th or 14th amendments, but not the amendment in question.

Oh, really? Wow. Those are some interesting hypotheses.

So, exactly how does restricting marriage to heterosexuals encourage procreation in marriage and not outside of marriage? How does restricting marriage encourage married people to procreate rather than choose not to have children at all or maybe they'll adopt children... how does marriage encourage procreation over adoption? I mean, I will concede that it did so at one time, but it doesn't anymore. So the children of a couple who aren't married and who stay together have less of a chance of survival? Where are your facts to support that one?

As far as a constitutional amendment being unconstitutional... can you have a constitutional amendment that violates a pre-existing amendment without repealing the first one? So, if it falls to the States to regulate marriage (because doing so is not a power specifically granted to the federal government in the constitution and because it has long been recognized as a power of the states), can the federal government decide to take away a power long recognized as being held by the states? Can the majority of states decide to take away a power held by individual states? I don't think so. And if a marriage amendment goes against the 14th Amendment can it exist alongside without repealing the 14th? No, it can't – can it?

Sure it can.

The 19th Amendment gave women the right to vote. The 26th lowered voting age to 18. They changed the Constitution without repealing the 14th Amendment.

The Amendments are equal to the Constitution, not separate. We keep them separate as a means of identifying them, but the 14th Amendment has the same weight as Article II and can be amended just the same.

entspeak:

From Peden v. Kansas Department of Revenue, 261 Kan. 239, 930 P.2d 1 (1996):

"Finally, in an effort to prove that the encouragement of marriage is a legitimate state interest, the State cites to the following studies which indicate that children are better off being in a family with two parents who are married to each other and that adults are better off, both emotionally and physically, when they are married:

Couples who merely cohabit, rather than marry, are far less likely to remain together. See Stets, The Link Between Past and Present Intimate Relationships, 14 J. of Fam. Issues 236, 251 (1993). Marriage provides a stable, coherent, regulated environment. Ross, Mirowsky & Goldsteen, The Impact of Family on Health: The Decade In Review, 52 J. of Marriage & Fam. 1059, 1063 (1990). See Hughes & Gove, Living Alone, Social Integration, and Mental Health, 87 Am. J. of Soc. 48 (1981); Umberson, Family Status and Health Behaviors: Social Control as a Dimension of Social Integration, 28 J. of Health & Soc. Behav. 306 (1987). A stable environment is crucial to the developmental needs of children. Hafen, The Constitutional Status of Marriage, Kinship, and Sexual Privacy--Balancing the Individual and Social Interests, 81 Mich. L. Rev. 463, 472 (1983). See Hughes & Gove, 87 Am. J. of Soc. at 50. Finally, scientific studies show that marriage is good for the physical, mental, and emotional well-being of the participants. As compared to unmarried persons, married persons exhibit significantly lower rates of alcoholism, suicide, schizophrenia, and other mental disorders. Coombs, Marital Status and Personal Well-Being: A Literature Review, 40 Fam. Rel. 97 (1991). Marriage is associated with lower rates of coronary heart disease, stroke, pneumonia, cirrhosis of the liver, automobile accidents, homicide, suicide, anxiety, and depression. Ross, Mirowsky & Goldsteen, 52 J. of Marriage & Fam. at 1061-62. Marriage also has positive and salutary effects on individuals' recovery rates from cancer and other serious illnesses. See Coombs, 40 Fam. Rel. 97. The evidence is overwhelming: marriage is beneficial to individuals and society, on balance. Lichter, The Retreat from Marriage and the Rise in Nonmarital Fertility, Report to Congress on Out-of-Wedlock Childbearing 137, 143 (Dep't of Health & Hum. Serv. 1995). Children not in two-parent homes have two to three times more behavioral and psychological problems than do children from intact homes. Zill & Schoenborn, Developmental, Learning and Emotional Problems: Health of Our Nation's Children, United States, 1988, Advance Data (Nat'l Center for Health Stat., Publication #120, Nov. 1990); McLanahan & Sandefur, Growing Up With a Single Parent: What Hurts, What Helps (Harv. U. Press 1994). Seventy percent of juveniles and young adults serving in long-term correctional facilities came from broken homes. Bureau of Justice Statistics, Surveys of Youth in Custody, 1987, p. 1 (U.S. Dep't of Just. 1988). Having two married parents at home also substantially increases the chances that a child will finish his or her education: If a child comes from a single-parent home, that factor alone increases the risk of dropping out of school by a factor of two. McLanahan, The Consequences of Nonmarital Childbearing for Women, Children and Society, Report to Congress on Out-of-Wedlock Childbearing 229, 231 (Dep't of Health & Hum. Serv. 1995). Children not living with two biological parents are at greater risk for maltreatment and abuse. Margolin, Child Abuse by Mother's Boyfriends: Why the Overrepresentation?, 16 Child Abuse and Neglect 541, 545-46 (1992). The rate of child poverty is five times higher for children living with single mothers than for children in intact families. U.S. Bureau of the Census, Statistical Abstract of the United States: 1992, Table 719, p. 457 (112th ed. Washington, D.C. 1992).

As a result, the State contends that society is better off when people are married. Since marriage conveys benefits to children, marriage participants, and society as a whole, the State asserts that the encouragement of marriage is a valid state interest and that it is proper for a state to favor marriage."

The four members of the Massachusetts Supreme Court who held the contrary [as opposed to the three dissenters] made a fundamental mistake. Procreation is not the entry requirement for marriage [as it were], it is the end that we are trying to promote and otherwise manage. Those marrying who currently don't want kids may very well change their minds, and for those who cannot have children, who knows, maybe in their case, or in some of their cases, some miracle of modern medicine [think, in vitro fertilization] will solve their problem. And if procreation is not the concern, then why prohibit me from marrying my sister? Of course, the Massachusetts Supreme Court has no response to that one, and if one applied the reasoning of the four in the majority, then one ought to prevail in that lawsuit claiming a denial of equal protection on the basis that he and his sister do not want and/or are not able to have children and so they ought to be able to get married. I will be patiently waiting for that day, and for what the four in the majority will have to say and write. The only reason why we have the consanginuity restriction is that procreation is theoretically possible and we don't "mutant" children roaming the streets. But the restriction is not narrowly tailored, at least if one adopts the Massachusetts majority opinion, since we don't test brother and sister to verify their claim that he and/or she is/are simply incapable of having children and so ought to be allowed to marry. By the way, how do you feel about that sterile fellow over there marrying his sister [and by sterile, I mean to say that he lost his testicles to an IED on some road in Iraq]? Or how about you marrying your having reached menopause [as it were] mother?

And in contrast to our four friends in Massachusetts, an Arizona Court of Appeals ruled the opposite in 2003, holding that, limiting marriage to a man and a woman promotes the state's legitimate interest in encouraging procreation and child-rearing within the marital relationship. And Indiana Court of Appeals did the same in 2005. From the Indiana case, Morrison v. Sadler, and this should respond to your reply to my last, even though it's long:

"The Plaintiffs here challenge Section 31-11-1-1 only under the first part of the Collins test: they contend the disparate treatment accorded by the statute is not reasonably related to inherent characteristics that distinguish the unequally treated classes, i.e., opposite-sex couples and same-sex couples. See footnote The Plaintiffs also note the extent of the differential treatment caused by prohibiting same-sex couples from marrying, such as with respect to evidentiary privileges for spousal communications, the making of health care decisions for a spouse, inheritance rights, and various government benefits. The Plaintiffs assert that there are three possible, but ultimately unreasonable, reasons for the legislative classification: to promote procreation and child-rearing by both natural parents, to promote the traditional family unit, and to promote the integrity of traditional marriage. The State agrees that these are the justifications for the differential treatment but, of course, claims that they are sufficiently rational justifications under the Collins test. We are satisfied that the Plaintiffs, as the ones challenging the statute, have failed to demonstrate that the marital procreation justification is manifestly unreasonable or arbitrary. Because we make this determination, we will not address the other two proffered justifications.

We begin by noting one of the Plaintiffs’ overarching arguments, namely their claim that recognizing same-sex marriage would not directly harm the traditional institution of opposite-sex marriage and the State’s interest in marital procreation. We conclude the Plaintiffs’ claim that recognizing same-sex marriage or unions will not harm the institution of opposite-sex marriage is not dispositive of the constitutional issue before this court. The key question in our view is whether the recognition of same-sex marriage would promote all of the same state interests that opposite-sex marriage does, including the interest in marital procreation. If it would not, then limiting the institution of marriage to opposite-sex couples is rational and acceptable under Article 1, § 23 of the Indiana Constitution.

The Plaintiffs also argue that the overall purpose behind all of Indiana’s Family Law Code is the protection of families. The statutory preamble to the Code listing its policies and purposes includes “recogniz[ing] the importance of family and children in our society,” “recogniz[ing] the responsibility of the state to enhance the viability of children and family in our society,” and “strengthen[ing] family life by assisting parents to fulfill their parental obligations . . . .” Ind. Code § 31-10-2-1. They also note that pursuant to a decision by this court, same-sex couples are permitted to adopt children. See In re Adoption of M.M.G.C., 785 N.E.2d 267 (Ind. Ct. App. 2003); see also In re Adoption of K.S.P., 804 N.E.2d 1253 (Ind. Ct. App. 2004). They further note that aside from certain testing and record-keeping requirements, the field of assisted reproduction has been left largely unregulated in Indiana. See I.C. §§ 16-41-14-1 to 20. Finally, they claim, and we do not dispute, that large numbers of same-sex couples in this state are choosing to raise children together, either by adoption or taking advantage of assisted reproduction technologies. Based upon these facts, the essence of the Plaintiffs’ argument is that it contravenes the central purpose of the Indiana Family Law Code to deny marriage to same-sex couples because although many of them are raising families, they are precluded from the multiple benefits associated with marriage. Likewise, the Plaintiffs essentially contend, it actually would further the State’s interests in marriage and the strengthening of families to allow same-sex couples to raise families within the institution of marriage.

This argument does not recognize the key difference between how most opposite-sex couples become parents, through sexual intercourse, and how all same-sex couples must become parents, through adoption or assisted reproduction. See footnote Becoming a parent by using “artificial” reproduction methods is frequently costly and time-consuming. Adopting children is much the same.See footnote Those persons wanting to have children by assisted reproduction or adoption are, by necessity, heavily invested, financially and emotionally, in those processes. Those processes also require a great deal of foresight and planning. “Natural” procreation, on the other hand, may occur only between opposite-sex couples and with no foresight or planning. All that is required is one instance of sexual intercourse with a man for a woman to become pregnant.

What does the difference between “natural” reproduction on the one hand and assisted reproduction and adoption on the other mean for constitutional purposes? It means that it impacts the State of Indiana’s clear interest in seeing that children are raised in stable environments. Those persons who have invested the significant time, effort, and expense associated with assisted reproduction or adoption may be seen as very likely to be able to provide such an environment, with or without the “protections” of marriage, because of the high level of financial and emotional commitment exerted in conceiving or adopting a child or children in the first place.

By contrast, procreation by “natural” reproduction may occur without any thought for the future. The State, first of all, may legitimately create the institution of opposite-sex marriage, and all the benefits accruing to it, in order to encourage male-female couples to procreate within the legitimacy and stability of a state-sanctioned relationship and to discourage unplanned, out-of-wedlock births resulting from “casual” intercourse.See footnote Second, even where an opposite-sex couple enters into a marriage with no intention of having children, “accidents” do happen, or persons often change their minds about wanting to have children. The institution of marriage not only encourages opposite-sex couples to form a relatively stable environmentSee footnote for the “natural” procreation of children in the first place, but it also encourages them to stay together and raise a child or children together if there is a “change in plans.”

One of the State’s key interests in supporting opposite-sex marriage is not necessarily to encourage and promote “natural” procreation across the board and at the expense of other forms of becoming parents, such as by adoption and assisted reproduction; rather, it encourages opposite-sex couples who, by definition, are the only type of couples that can reproduce on their own by engaging in sex with little or no contemplation of the consequences that might result, i.e. a child, to procreate responsibly. The State recognized this during oral argument when it identified the protection of unintended children resulting from heterosexual intercourse as one of the key interests in opposite-sex marriage. The institution of opposite-sex marriage both encourages such couples to enter into a stable relationship before having children and to remain in such a relationship if children arrive during the marriage unexpectedly. The recognition of same-sex marriage would not further this interest in heterosexual “responsible procreation.” See footnote Therefore, the legislative classification of extending marriage benefits to opposite-sex couples but not same-sex couples is reasonably related to a clearly identifiable, inherent characteristic that distinguishes the two classes: the ability or inability to procreate by “natural” means.

Justice Cordy of the Supreme Judicial Court of Massachusetts has aptly described the connection between marriage, heterosexual reproduction, and childrearing in a way that emphasizes our point regarding “responsible procreation” and the fundamental difference between same-sex and opposite-sex couples:

Paramount among its many important functions, the institution of marriage has systematically provided for the regulation of heterosexual behavior, brought order to the resulting procreation, and ensured a stable family structure in which children will be reared, educated, and socialized. Admittedly, heterosexual intercourse, procreation, and child care are not necessarily conjoined . . ., but an orderly society requires some mechanism for coping with the fact that sexual intercourse commonly results in pregnancy and childbirth. The institution of marriage is that mechanism. . . . The institution of marriage provides the important legal and normative link between heterosexual intercourse and procreation on the one hand and family responsibilities on the other. The partners in a marriage are expected to engage in exclusive sexual relations, with children the probable result and paternity presumed. Whereas the relationship between mother and child is demonstratively and predictably created and recognizable through the biological process of pregnancy and childbirth, there is no corresponding process for creating a relationship between father and child. Similarly, aside from an act of heterosexual intercourse nine months prior to childbirth, there is no process for creating a relationship between a man and a woman as the parents of a particular child. The institution of marriage fills this void by formally binding the husband-father to his wife and child, and imposing on him the responsibilities of fatherhood. The alternative, a society without the institution of marriage, in which heterosexual intercourse, procreation, and child care are largely disconnected processes, would be chaotic.

Goodridge v. Department of Pub. Health, 798 N.E.2d 941, 995-96 (Mass. 2003) (Cordy, J., dissenting) (internal citations omitted).

More specific to Indiana and the question arising under the Indiana Constitution, our supreme court made similar observations regarding opposite-sex marriage long before the current debate regarding same-sex marriage erupted:
Marriage is the basic unit of our society. Through the institution of marriage, biological drives are directed into channels of socially accepted activity; it encourages the exercise of intimate affections on a most personal basis; children are theoretically provided with a stable environment; a means is provided by which such children might be reared and educated; individual initiative and self reliance are nurtured; family continuity from generation to generation is established. O’Connor v. O’Connor, 253 Ind. 295, 310, 253 N.E.2d 250, 258 (1969). Members of a same-sex couple who wish to have a child, on the other hand, have already demonstrated their commitment to child-rearing, by virtue of the difficulty of obtaining a child through adoption or assisted reproduction, without the State necessarily having to encourage that commitment through the institution of marriage. Conversely, the “casual” intimate acts of a same-sex couple will never result in a child, but those of an opposite-sex couple can and frequently do.

Thus, although we accept that there are a growing number of studies indicating that same-sex couples are at least as successful at raising children as opposite-sex couples, such studies are irrelevant to the question of whether the Indiana Constitution requires that same-sex couples be allowed to marry. Additionally, it is quintessentially a task for the legislature to consider the weight to be assigned to these various studies, especially in light of the existence of some criticism of them and the relative novelty of the same-sex family structure, in deciding whether civil marriage benefits should be extended to same-sex couples. See, e.g., Goodridge, 798 N.E.2d at 979-80 (Sosman, J., dissenting).

We also do not need to address whether the only purpose of civil marriage is the State’s interest in encouraging opposite-sex couples to procreate and raise children responsibly. We agree and acknowledge that modern society attaches importance to the concept of marriage beyond procreation and establishing a stable environment for the raising of children. Nonetheless, it would also be improper to ignore that procreation and the raising of children is, and has been for a long time, recognized as one of the key purposes of marriage that is very important to many couples entering that institution, even if it is not the only purpose. We reiterate that Collins requires only that the disparate treatment accorded by legislation, not its purposes, be reasonably related to the inherent characteristics that distinguish the unequally treated classes. Dvorak, 796 N.E.2d at 239. We may not inquire into the legislative motives prompting the classification at issue in this case to divine whether the legislature’s true purpose was to discriminate against homosexual couples. See Collins, 644 N.E.2d at 80 (quoting Chaffin v. Nicosia, 261 Ind. 698, 701, 310 N.E.2d 867, 869 (1974)).

[and for the part that the Massachusetts majority simply forgot, which is simply inexecusable for judges and lawyers] The Plaintiffs also argue extensively that it is irrational to justify opposite-sex only marriage on procreative grounds because there is no requirement that couples wishing to marry prove their fertility or willingness to procreate, and furthermore even definitively sterile persons, such as elderly women, are allowed to marry. This is an overbreadth argument – it essentially posits that the State is required to more carefully draw lines concerning who may marry if it truly has an interest in promoting “responsible procreation” by opposite-sex couples, by excluding opposite-sex couples from marriage if they cannot, or will not, procreate.

A reasonable legislative classification is not to be condemned “merely because it is not framed with such mathematical nicety as to include all within the reason of the classification and to exclude all others.” Collins, 644 N.E.2d at 80 (quoting Cincinnati, Hamilton & Dayton Ry. Co. v. McCullom,183 Ind. 556, 561, 109 N.E. 206, 208 (1915)). There was a rational basis for the legislature to draw the line between opposite-sex couples, who as a generic group are biologically capable of reproducing, and same-sex couples, who are not. This is true, regardless of whether there are some opposite-sex couples that wish to marry but one or both partners are physically incapable of reproducing [my note, and never mind, as I will mention below, the matter of privacy, but the overbreadth challenge is a loser, for any who took and understand Constitutional Law].
***
[and now for the further rejoinder to the Massachusetts majority of four] The second case is the Goodridge case from Massachusetts, which we have already mentioned and whose result we also decline to follow. First, we observe that although the majority purports to apply a rational basis test to Massachusetts’ limitation of marriage to opposite-sex couples only, it frequently uses language suggesting that some stricter standard of review was being employed that was less deferential to legislative discretion. See Goodridge, 798 N.E.2d at 980-81 (Sosman, J., dissenting) (noting numerous references in the majority opinion to infringements on “fundamental rights,” comparisons to interracial marriage bans that required strict scrutiny review, and characterizing the choice of whom to marry, regardless of gender, as “among the most basic of every individual’s liberty and due process rights”). This analysis is inconsistent with the substantial deference courts must accord legislative classifications under Article 1, § 23 of the Indiana Constitution.

We additionally find that the Goodridge majority opinion is largely devoid of discussion of why the Commonwealth of Massachusetts might have chosen in the first place to extend marriage benefits to opposite-sex couples but not same-sex couples. It may well be, as the majority stated, that for many people “it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage.” Id. at 961. However, that does not answer the question of why the government may choose to bestow benefits on one type of permanent commitment and not another. As we have identified, at least one of the reasons the government does so is to encourage “responsible procreation” by opposite-sex couples. Justice Cordy, in his dissent, correctly identifies this interest as being central to governmental recognition and support of opposite-sex marriage. Id. at 995-96 (Cordy, J., dissenting). The recognition of same-sex marriage would not further this interest.

We do concur with the result reached and analysis used in a decision by the Court of Appeals of Arizona. That court concluded that Arizona’s version of DOMA, Ariz. Rev. Stat. § 25-101©, did not violate state or federal guarantees of substantive due process and equal protection. Standhardt v. Superior Court, County of Maricopa, 77 P.3d 451 (Ariz. Ct. App. 2003), rev. denied (2004). That court conceded, “Children raised in families headed by a same-sex couple deserve and benefit from bilateral parenting within long-term, committed relationships just as much as children with married parents.” Id. at 463. Nevertheless, this did not make the limitation of marriage to opposite-sex couples irrational, as the court explained:

Indisputably, the only sexual relationship capable of producing children is one between a man and a woman. The State could reasonably decide that by encouraging opposite-sex couples to marry, thereby assuming legal and financial obligations, the children born from such relationships will have better opportunities to be nurtured and raised by two parents within long-term, committed relationships, which society has traditionally viewed as advantageous for children. Because same-sex couples cannot by themselves procreate, the State could also reasonably decide that sanctioning same-sex marriages would do little to advance the State’s interest in ensuring responsible procreation within committed, long-term relationships. Id. at 462-63. This analysis fully squares with our emphasis on whether allowing same-sex marriage would further the State’s interest in encouraging “responsible procreation” by opposite-sex couples, not on whether that interest would be harmed.

Additionally, recent scholarly commentary from Canada supports our position in this case. Our neighbors to the north also have been struggling with the same-sex marriage issue in recent years, leading to several decisions that have required recognition of such unions, including EGALE Canada Inc. v. Canada, [B.C. Ct. App. 2003] 225 D.L.R. (4th) 472, and Halpern v. Toronto, [Ont. Ct. App. 2003] 225 D.L.R. (4th) 529. One commentator, however, has taken strong issue with the decisions in EGALE and Halpern, as well as in Baker and Goodridge, and their treatment of the same-sex marriage issue, concluding that these courts “did an unacceptable job with their performance of the very tasks that lie at the heart of judicial responsibility in virtually every case.” Monte Neil Stewart, Judicial Redefinition of Marriage, 21 Can. J. Fam. L. 13, 132 (2004).

This commentator, in part, takes specific issue with the courts’ treatment of the procreation argument in favor of opposite-sex-only marriage, focusing primarily on the Goodridge case. The article correctly notes:

[A] central and probably preeminent purpose of the civil institution of marriage (its deep logic) is to regulate the consequences of man/woman intercourse, that is, to assure to the greatest extent practically possible adequate private welfare at child-birth and thereafter. The opinions simply avoid this point when they say that marriage law does not require an intent or ability to procreate to stay married; they miss the States’ point that marriage’s vital purpose in our societies is not to mandate man/woman procreation but to ameliorate its consequences. Id. at 47 (emphasis in original). Furthermore, “the only form of human procreation is heterosexual and that will continue to be the case until humankind begins human cloning.” Id. at 49 (emphasis in original). The article also acknowledges:
[T]he nature of [assisted reproduction technology] assures that conception will be the result of deliberation, planning, preparation, and commitment, which in turn assures to a high degree all the same relative to provision of private welfare at birth and thereafter. Thus, deliberative procreation by [assisted reproduction technology], for those dependent on it, to a not inconsiderable extent performs to society’s benefit the role that marriage was designed to fill for the far greater number engaged in passion-based procreation... Id. at 50. This article is fully reflective of our position: opposite-sex marriage is recognized and supported by law in large part to encourage “responsible procreation” by opposite-sex couples, who are the only ones who can, in fact, procreate “by accident,” while those couples, either opposite-sex or same-sex, who must rely on adoption or assisted reproduction technology to have children have already demonstrated a commitment to responsibility without it having to be artificially encouraged by the government.

The State of Indiana has a legitimate interest in encouraging opposite-sex couples to enter and remain in, as far as possible, the relatively stable institution of marriage for the sake of children who are frequently the natural result of sexual relations between a man and a woman. One commentator has put it succinctly as follows: “The public legal union of a man and woman is designed . . . to protect the children that their sexual union (and that type of sexual union alone) regularly produces.” Maggie Gallagher, What is Marriage For? The Public Purposes of Marriage Law, 62 La. L. Rev. 773, 782 (2002). Even accepting that many same-sex couples are successfully raising children in today’s society, these couples are not at “risk” of having random and unexpected children by virtue of their ordinary sexual activities. Extending the benefits of civil marriage to same-sex couples would not further the State’s interest in “responsible procreation” by opposite-sex couples. The differentiation between opposite-sex and same-sex couples in Indiana marriage law is based on inherent differences reasonably and rationally distinguishing the two classes: the ability to procreate “naturally.” Given the high degree of deference we accord to legislative classifications, the Plaintiffs have not established that this particular classification violates the Equal Privileges and Immunities Clause of the Indiana Constitution, Article 1, § 23.
***
What we decide today is that the Indiana Constitution does not require the governmental recognition of same-sex marriage, although the legislature is certainly free to grant such recognition or create a parallel institution under that document. Nevertheless, Indiana’s DOMA, Indiana Code Section 31-11-1-1, does not violate Article 1, § 23 of the Indiana Constitution because opposite-sex marriage furthers the legitimate state interest in encouraging opposite-sex couples to procreate responsibly and have and raise children within a stable environment. Regardless of whether recognizing same-sex marriage would harm this interest, neither does it further it. The ability of opposite-sex couples to reproduce “naturally” and unexpectedly is the characteristic that rationally distinguishes them from same-sex couples. For much the same reasons, Section 31-11-1-1 also does not violate Article 1, § 12 of the Indiana Constitution. Finally, the Plaintiffs have failed to establish that they enjoy a “core value” right under Article 1, § 1 of the Indiana Constitution to marry each other and receive accompanying government benefits that is materially burdened by Section 31-11-1-1, even if Article 1, § 1 is currently capable of independent judicial enforcement in this context, which is doubtful. Section 31-11-1-1 does not run afoul of the Indiana Constitution and we conclude the trial court properly dismissed the Plaintiffs’ complaint because they failed to state a claim upon which relief could be granted."

And to meet the objection of the four in Massachusetts, we don't make an individualized determination re procreation because there is another interest in need of protection, to wit, privacy. We don't need to invade anyone's privacy in the case of the homosexual couple, given that the inability to reproduce among themselves [as it were] is rather plainly evident via their being of the same sex and so no further inquiry need be made.

Well, let me try to sift through the stuff here. It's hard to tell what is quote and what is not.

First:

The case you mention is an Indiana case. The standard for scrutiny applied in this case is weaker than that required in a case that deals with the US Constitution. Since we are dealing in this thread with the US Constitution and not the Indiana State Constitution, I believe strict scrutiny applies.

According to the strict scrutiny standard, the exclusion must serve a legitimate State interest and the exclusion must be necessary in order to further that interest.

This is a much stronger level of scrutiny than the Collins test, which has two requirements:

First, the disparate treatment accorded by the legislation must be reasonably related to inherent characteristics which distinguish the unequally treated classes. Second, the preferential treatment must be uniformly applicable and equally available to all persons similarly situated.

This is a much weaker form of scrutiny and much more akin to middle-tier scrutiny when dealing with the US Constitution in which:

The exclusion must serve a legitimate State interest and the exclusion is at least substantially related to serving that interest.

But when dealing with a fundamental right such as marriage, you must apply strict scrutiny when dealing with the US Constitution.

Yes, the State may have an interest in encouraging marriage for the purposes of procreation, but is the exclusion of same-sex couples necessary in order to further that interest. In order for that to be true, you would have to be able to prove that allowing same-sex marriage would have an adverse effect on encouraging opposite-sex couples to procreate in marriage. You would have to also prove that procreation is a necessary component of marriage. You would then have to deal with those couples incapable of procreating (i.e. the elderly and the infertile). If the state allows couples that it knows can't procreate to marry, then excluding couples from marrying solely on the grounds that they can't procreate isn't necessary.

The case also includes a statement from the dissenting opinion in Goodridge:



Adultery: There are states in which adultery is not a crime, and in many states, adultery laws are not enforced... so where does this legal expectation of exclusive sexual relations come in? It really doesn't. Which brings me to the next item...

Assumed Paternity: There are now states in which, if it can be proven that a child had during a marriage was not the husband's, that man may separate himself from his responsibilities for the child.

So, while it sounds nice... marriage does not universally provide these protections anymore.

I do concede that marriage is intended to encourage child-rearing... that marriage is the ideal relationship in which to raise a child, but procreation is not the only way a child is introduced into a family. So, what do you do... you deny marriage to same-sex couples with children solely because those children were not a product of that couple's procreation? You deny that child the benefits that marriage affords simply because he/she was not the result of his parents' procreation? What kind of sense does that make?

As for the incest question, generally incest is illegal in some states... not in others. Incest between a brother and sister, mother and son, father and daughter is illegal in every state. While this may have something to do with procreation, it also has to do with abuse. Being that incestuous sexual relations between these people is illegal, marriages between these people should also be illegal. Being that, as you say, one of the state's interests is in encouraging procreation... in allowing these people to marry would be State encouraging of an illegal act. The State definitely has an interest in preventing illegal acts and the exclusion is necessary in order to further that interest. The strict scrutiny standard is satisfied. Exclusion of marriage between these types of people is perfectly constitutional. So, until incestuous sexual relations between these types of people become legal, these types of marriages will be illegal. So, why don't we let the incestuous couples fight their own battle – allowing for same-sex marriage has absolutely no effect on their situation.

Your case does show that it is possible for a constitutional amendment to be challenged based on its interference with another article of that constitution. Thank you for that.

entspeak:

First item, standard of review. The standard of review depends on, well, the normal/usual standard of review is called the "rational basis test," meaning that the challenged legislation will "survive" if it bears some rational relationship to a legitimate state objective [see Williamson v. Lee Optical]. Then we have what we call "intermediate scrutiny," which is applied in matters involving a "quasi-suspect class", such as women, i.e., if you are a woman claiming that the legislation discriminates against you on the basis of your gender, the legislation will be reviewed according to the intermediate scrutiny standard of review. Intermediate scrutiny means that instead of a review looking for a rational relationship to a legitimate state objective, we will be looking to see if the discriminatory classification is substantially related to an important government objective [see Craig v. Boren]. And last but certainly not least is strict scrutiny, which is used when the legislation at issue classifies according to what we call a "suspect class" [think "race"] or otherwise impinges on what we call a "fundamental interest/right". Strict scrutiny means that we will be looking to see if the legislation serves a compelling state interest and is otherwise narrowly tailored such that it serves only that interest [see Washington v. Glucksberg]. And so I don't mislead you, in absence of some suspect class or infringment on a fundmental interest/right that is not merely incidental, legislation is presumed constitutional, which is why I put the "survive" in " " above.

Now, the analysis. Let me start first with your claim that marriage is a fundamental right. Is it? Yes, it has been found to be such, but almost always in the context of heterosexual marriage. The UN's Universal Declaration of Human Rights otherwise provides, at article 1: All human beings are born free and equal in dignity and rights. And at article 7: All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. However, article 16 provides:

"(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

(2) Marriage shall be entered into only with the free and full consent of the intending spouses.

(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State."

Article 16 otherwise merely states what was reported in Meyer v. Nebraska, to wit, that one's right to liberty includes the fundamental right "to marry, establish a home and bring up children."

You otherwise have a problem, going back to Palko v. Connecticut, since the relevant statement from that case is that "fundamental rights" are those rights which are "implicit in our concept of ordered liberty." And what do mean when we say that a right is implicit in our concept of ordered liberty? Well, we mean that they are "deeply rooted in this Nation's history and tradition" [see Reno v. Flores]. Or if you prefer, we mean to say that to be fundamental, a right must be "so rooted in the traditions and conscience of our people as to be ranked as fundamental." Or as stated in Michael H. v. Gerald D., [W]e have insisted not merely that the interest denominated as a "liberty" be "fundamental"...but also that it be an interest traditionally protected by our society. Or as stated in Meyer v. Nebraska, the 14th Amendment protects "those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men". Tell me, is homosexual marriage deeply rooted in this Nation's history and tradition? Is homosexual marriage an interest traditionally protected by our society? Is homosexual marriage a privilege long recognized at common law as essential to the orderly pursuit of happiness by free men? The answer to those questions is obviously, no. And so homosexual marriage is not a fundamental liberty interest/right.

Now on to suspect class. What is suspect about not allowing homosexuals to marry? We view "race" as suspect because some extra melanin in one's skin has nothing at all to do with one's relative capacity and/or functioning, meaning that my having less melanin than my friend whose ancestors came from Africa does not necessarily mean that I am any more intelligent, functional, etc., than he is. And so any classification based on race is suspect. And then there's women. As I have remarked prior here at AD, in the case of women, we dressed up oppression in the guise of fate and piety, meaning that when we were speaking of protecting women, in light of their purportedly immutable nature, we were really meaning to oppress them. And we have otherwise learned that with a few exceptions not relevant here, that there is no legitimate or sound reason to distinguish between men, on the hand, and women on the other. And so we look at any classification based on gender as quasi-suspect. The difference between race and gender is simply that, as I said, there are some exceptions for gender while there are none for race.

In any event, all federal court decisions addressing the matter have held that homosexuals are not a suspect class and so legislation discriminating against homosexuals has been reviewed pursuant to the "rational basis test". In the last "big" case, Texas v. Alexander, Texas' anti-sodomy statute was reviewed under the "rational basis test" and the statute was struck down on the basis that Texas has no legitimate interest in regulating the sexual conduct of persons that occurs behind closed, private, doors. And by the way, I have no problem with that result, or should I say that unless the issue is capacity to consent, the state has no legitimate interest in regulating the purely private sexual conduct of any person, and so if the statute prohibited only homosexual sodomy, I would hold the same to be facially unconstitutional, as denying both due process of law and equal protection, and if the statute were orientation neutral, i.e., prohibited all sodomy, but was selectively enforced, i.e., only homosexuals were prosecuted, I would hold the statute to be unconstitutional as applied [and on the same basis as stated with respect to the facially unconstitutional].

In any event, we have no fundamental right and no suspect class, which leaves us with a rational basis standard of review.

The state does not otherwise have to prove that homosexual marriage will harm heterosexual marriage. The test isn't "necessary" but "narrowly tailored." And the problem you have is that all you can point to is that sterile persons can get married, so obviously the legislation is not narrowly tailored in the sense that if procreation is the goal, we are including people that cannot procreate. But that avails you nothing, since by "narrowly tailored" we are not so much concerned with people getting benefits or favors that they shouldn't, but instead, we are primarily concerned with discriminating against people that we shouldn't. So the correct application of "narrowly tailored" would be where we said that we are trying to encourage procreation in intact families, but we are excluding people who are able to procreate in intact families. Homosexuals are not such persons. And the remedy, if there was one, would not be to allow homosexuals to marry, it would be to require the state to weed out those who cannot procreate, i.e., to narrowly tailor our procreation in intact families statute by eliminating from the favored class those who cannot procreate.

And, remember, we are not saying that homosexuals cannot love each other, live together, etc. All we are saying is that the state wishes to encourage procreation in intact families and so has designed a scheme to accomplish that result. The state could just as easily put the "nay" to the whole matter and not give anyone any benefit at all, as a matter of fact, the state could simply get out of the marriage business entirely, and just so we don't have "mutants" roaming the streets, or otherwise in need of some state aid to address the consequences of "inbreeding", the state could simply criminalize vaginal sexual intercourse between persons standing in a certain relation of consanginuity and who are otherwise fertile.

As the Indiana case makes plain, there is indeed a rational basis for limiting marriage to heterosexual couples, and for the reason[s] stated, i.e., homosexual couples wishing to have children will usually have to go to some trouble to accomplish that result, while with heterosexuals, one bad choice to have "unprotected" sex might lead one down that road to parenthood. And some, but not all, of the benefits extended to married persons might be viewed, or so would claim the state, as an enticement into marriage and its accompanying regulation, etc. We otherwise take care of the kids, and by the way, in addressing this matter, one should not view the marriage legislation in isolation, since by taking care of kids, we extend benefits not only to married heterosexual couples, we extend benefits to "head of household" and to anyone else whom the child[ren] are dependent on. Which is another way of saying that the state can simply claim that none of this is "invidious" discrimination, but simply part of a comprehensive scheme designed to deal with the reality that humans procreate and have children, who are themselves necessary to the continuing existence of the state. So contrary to your claim, we do take into account that some children are not being raised by married heterosexual parents.

And not that it truly matters, but the "gripe" here is, well, let me simply say that more than a few tax dollars of single taxpayers, hetero, homo, or otherwise, are going to pay for the schooling, medical care, etc., of other people's children. Is that fair [does it accord with notions of due process of law and/or equal protection]? Since when do you, I, or anyone else have some obligation to subsidize the raising of another's child? Those concerned with the purportedly soon coming theocracy might find ironic those certain words spoken by Moses, to wit, did I conceive all this people that you should say to me...truly, if I have found favor in your sight, kill me now so that I might no longer have to look upon my own wretchedness...

Lastly, thanks for addressing the others matters I raised. But you missed the point. Fine, incest has been criminalized. But, again, that misses the point. Or more correctly, should we not have a defense to a criminal charge of incest based on both persons having reached the age of consent/majority and one or both being infertile? Why do we criminalize incest? Because we don't want "mutant" children roaming our streets? Or because we view incest as simply immoral? As concerns the latter, you have heard, yes, some saying that we ought not be legislating morality? And for cruel irony, isn't that same claim made by homosexuals? And as concerns the former, as I said, we can deal with the age of consent separately, which is why we otherwise have laws concerning what we call statutory rape. Such statutes could simply apply to all persons, and never mind any family relationship and/or lack of the same. And we could provide a defense to incest for those who have the capacity to consent and wherein one or both are otherwise infertile. And going back to a portion of what I said above, if the state does not have to prove me and the woman fertile before convicting either or both of us of the crime of incest, then why should it have to prove that all married heterosexuals are fertile?

Sorry, one more. For more on due process and/or equal protection, why do employers have to provide medical insurance coverage for their employees? Ought it not be enough that the employer merely assume that liability for which he/she/it may be responsible, i.e., the provision of worker's compensation insurance, so that the employee is protected against work-related injury? I don't hear homosexuals [and heterosexuals, for that matter] reporting on just how unfair it is for the employer to have to provide medical coverage for the employee. So here we are complaining about a denial of benefits and we've not one word to say regarding the legitimacy of mandated employer provided medical insurance coverage. And do we value personal freedom? If so, then why TDI [temporary disability insurance]? Why does my employer have to provide insurance coverage for loss of income/wages resulting for accident and/or injury that are wholly unconnected with my employment and which may otherwise result from my engaging in conduct that the employer does not control? I ask that because in our sports world, you won't see a guaranteed contract that does not have some provisions concerning just what activities the employee athlete might is prohibited from undertaking [our football friend who did some motorcycling in violation of his contract can serve as our example]. So maybe taking the clue from the sports world, our employers wake up and decide that as condition of our employment, that we agree to not ever do a, b, c, and d? I mean, hey, reducing the risk will reduce the premium cost, yes, so that might make some sense? Is that what we want as a society? And were we to prohibit employers from attempting to enter into such an agreement in relation to the provision of TDI, on what legal and/or moral basis can we do so? I mean, how much more patently violative of due process can it be to make one responsible for the care of another without giving that person some authority to control that other in her/his care? Which brings us back to parents. Parents do indeed have a duty to provide for their little ones, but they also get some power, as they are jointly the natural guardians of the child's person and property, and so they can control her/his behavior, education, etc., and, yes, even the child's associates. So it is a two-way street, i.e., we've assigned you a human to take care of, and here's the authority to exercise that care. So maybe one's employer says, bad enough I've got to provide these benefits to heterosexual employees AND THEIR FAMILIES, but now you want me to provide the same to Johnny's "gal", Jim? And, hey, I love kids, but Jim isn't one of them, and he otherwise doesn't look like any wife that I've ever seen....

See, you've placed a tag on the beginning of marriage. Let's take a look at another tag in a different context – interracial marriage. Is interracial marriage a fundamental right? Interracial marriage is not "deeply rooted in this Nation's history and tradition." In fact, many people felt, and some still do, that interracial marriage is immoral. Granted, in that case you were also dealing with a suspect class, but it is stated in Loving that marriage is a fundamental right.

So, what is the legal right that is "deeply rooted in our Nation's history and tradition?" If you change the legal definition back to what it was pre-1970, you will see. Marriage is the right to marry another person of your choice. There was no mention of the gender of the choice. That is the right that is deeply rooted in our nation's history and tradition. Traditionally, and throughout our Nation's history, the government has allowed a person to marry another person. Granted, there were limitations, but those limitations existed in other laws. There was never (prior to 1970) an explicit ban on same-sex marriage. The exclusion came in another form... sodomy laws. And this made sense, yes? Through most of our Nation's history marriage was about procreation and part of the government's regulation to ensure this was the existence of sodomy laws. In addition to dealing with a "moral" issue, it also ensured that sexual conduct in marriage allowed for procreation. Any sexual act which did not allow for procreation (meaning, any act that was not penetrative vaginal intercourse) was sodomy and was illegal. That, combined with the fornication laws provided government encouragement of procreation in marriage.

But this changed (starting in 1961) when states began repealing sodomy laws (either through legislative action or through judicial challenge). Suddenly, there was nothing to keep same-sex couples from marrying in states that had a legal definition on the books. So, states began changing the legal definition of marriage – oddly enough, something opponents of same-sex marriage accuse its supporters of attempting.

So, can you exclude a group from a right simply because historically same-sex couples were implicitly excluded? If you say, yes, then you are arguing that same-sex marriage should not be allowed simply because it has never been allowed before without looking at the reason why. Why can't we allow them to marry? Because they've never been allowed to marry. That is unreasonable. That ignores the reasoning behind why, historically, they were excluded and how civilization and civil marriage have evolved since the nation came into existence.

The legal right of civil marriage has changed in the last century... heterosexuals changed it... why? Because they wanted less government regulation, more privacy and a right to choose whether to procreate or not. Because they wanted to be able to have sex outside of marriage, and they wanted the freedom to explore their sexuality. This is a simple fact. However, heterosexuals would now use an antiquated idea of marriage to exclude same-sex couples from marrying because they can't procreate (something which heterosexuals believe should be a choice in marriage... not a requirement). That is unreasonable. They would deny marriage to same-sex couples with children and in the same breath say that marriage is the ideal environment in which to raise children. That is unreasonable.

Considering that the legal right of marriage in this country historically and traditionally had no explicit limitation when it came to gender, any legislation that alters that right and adds an explicit exclusion regarding gender should be subject to the strict scrutiny standard of review. Because that alteration effects a legal right deeply rooted in our nation's history and tradition.



As I stated earlier, the Collins test is very different from the varying degrees of scrutiny applied to analysis of challenges involving the U.S. Constitution. The Collins test is the only test applied to challenges regarding Article 1, Section 23 of the Indiana State Constitution. So, even if they are dealing with a right, if the challenge is to Art. 1, Sec 23 of the Indiana State Constitution, the Collins test is applied. The first prong of which is: The disparate treatment accorded by the legislation must be reasonably related to inherent characteristics which distinguish the unequally treated classes. Well, even laws banning interracial marriage would survive that test. And the second prong: the preferential treatment must be uniformly applicable and equally available to all persons similarly situated. Bans on interracial marriage survive that one, too. So, as I stated earlier, I don't think the analysis applied to the Indiana case can be applied to an analysis of the U.S. Constitution.

That said, let me respond to some of your argument that relies so heavily on this case. Is there an enticement to procreate once married? No. The enticement is to have couples married so that if they choose to have children (be it through procreation, adoption, or some other means) the child will be raised in what is considered by the state to be an ideal environment. But this has very little to do with procreation and everything to do with a raising children once they are present. The aim is to have the ideal environment in which to raise a child. But, wouldn't such an environment also be beneficial to the children raised by same-sex couples? Yes, it's true that same-sex couples who decide to raise children have to work harder to do that... doesn't that show the dedication to raising a child? Shouldn't a child raised by such dedicated parents who are so very interested in having a family be allowed to be raised in what the State considers the ideal environment in which to raise children? Or should these children be denied that benefit simply because the couple raising them didn't procreate in order to get them. Does that make sense? Keep the people who are so very interested in raising a family – who jump through hoops to start one – from being able to raise their children in an ideal environment... yeah, that makes sense.



Is incest between first blood relatives illegal? Yes or no? Yes. Yes, there is a moral question regarding incest, but there are other questions as well. There is no need to go into that in this forum, because these questions have nothing to do with same-sex marriage. Incest is illegal and therefore marriage between first blood relatives is illegal. End of story. Should incestuous couples overturn the incest laws then they will be able to marry. Until then, they can't. It's as easy as that.

You are trying to compare apples and oranges. If you were comparing incest laws to sodomy laws, you might have a point. But being that sodomy is no longer illegal, the question of the state's view regarding the morality of homosexual conduct has been answered and it was answered starting back in 1961. The State no longer views homosexual conduct as immoral... it no longer views homosexual acts as illegal. And, the state allows married couples to engage in sodomy. Yet, these were the reasons that same-sex couples were implicitly excluded from marriage under the previous legal definition of marriage. This is why same-sex marriage was not an explicit part of this "tradition" that you mention. Now that the only reasons same-sex couples were implicitly excluded before are gone, the State still wants to exclude them from the right to marry. Why? Because homosexuality is immoral? The State doesn't view it as immoral. Because marriage is about procreation? Well, the State no longer views the allowance for procreation as a requirement in marriage.

You say the State regulates marriage to encourage procreation. How does it go about doing that? By simply offering marriage? No. Every married couple today could decide not to procreate and they would still be married... so, how will the State encourage them to do it? The pre-emptive strike argument... we hope to encourage people to marry so that when they procreate they will be married doesn't fly. There is no added State benefit related exclusively to procreation in marriage as opposed to adoption, surrogacy or alternative fertilization methods except one: assumed paternity... and, as I stated earlier, that's going away, too. So, the benefit comes when a child is present in a married family regardless of how it got there. The aim is to provide protection for the interests of the child. The State used to have laws to "encourage" procreation in marriage... but it's removed them. So, how does the State encourage procreation in marriage?

Perhaps a more important question, will this "encouragement" be somehow hindered by allowing same-sex couples to marry? If that is true, that would mean that heterosexual married couples would not be encouraged to procreate in marriage simply because same-sex couples can marry. So... heterosexual couples will stop procreating if they know that same-sex couples are allowed to marry, too? That makes no rational sense.



Well, here you seem to be implying that same-sex couples, in addition to being able to procreate, will never raise children. You also seem to imply that a family has to consist of a man and a woman, at least – or one of these and a child. Neither of these implications have any basis in truth.



So, a family may have children in it... or it may not. There is also no mention of a gender requirement.

So, if marriage is a right, protected by the 14th Amendment, is it constitutional to have an amendment that abridges that right without altering or repealing the amendment in which the original protection lies?

The Indiana case mentioned by Kivrot is an example of a challenge to a constitutional amendment based on it's violation of a pre-existing article in the State's constitution. The case was not dismissed on the grounds that a constitutional amendment can't be unconstitutional.

entspeak:

I'll deal with Loving v. Virginia in a bit, but first, from Justice Powell's concurring opinion in Zablocki v. Redhail, in pertinent part:

"On several occasions, the Court has acknowledged the importance of the marriage relationship to the maintenance of values essential to organized society. "This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment." Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639 -640 (1974). Our decisions indicate that the guarantee of personal privacy or autonomy secured against unjustifiable governmental interference by the Due Process Clause "has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967) . . . ." Roe v. Wade, 410 U.S. 113, 152 (1973). "While the outer limits of this aspect of privacy have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions `relating to marriage. . . .'" Carey v. Population Services International, 431 U.S. 678, 684 -685 (1977).

Thus, it is fair to say that there is a right of marital and familial privacy which places some substantive limits on the regulatory power of government. But the Court has yet to hold that all regulation touching upon marriage implicates a "fundamental right" triggering the most exacting judicial scrutiny.
***
State regulation has included bans on incest, bigamy, and homosexuality, as well as various preconditions to marriage, such as blood tests. Likewise, a showing of fault on the part of one of the partners traditionally has been a prerequisite to the dissolution of an unsuccessful union. A "compelling state purpose" inquiry would cast doubt on the network of restrictions that the States have fashioned to govern marriage and divorce..."

So, do you think that Justice Powell believed that the State could not prohibit homosexual marriage, just as it prohibits bigamist and incestuous marriages?

And you might also compare:

Moore v. City of East Cleveland
[holding unconstitutional a statute that would have prohibited "traditional family members" from residing together] [or as stated by Justice Powell, writing for the majority: "Appellant, Mrs. Inez Moore, lives in her East Cleveland home together with her son, Dale Moore, Sr., and her two grandsons, Dale, Jr., and John Moore, Jr. The two boys are first cousins, rather than brothers; we are told that John came to live with his grandmother and with the elder and younger Dale Moores after his mother's death. In early 1973, Mrs. Moore received a notice of violation from the city, stating that John was an "illegal occupant" and directing her to comply with the ordinance. When she failed to remove him from her home, the city filed a criminal charge. Mrs. Moore moved to dismiss, claiming that the ordinance was constitutionally invalid on its face. Her motion was overruled, and, upon conviction, she was sentenced to five days in jail and a $25 fine.]

with

Village of Belle Terre v. Borass
[upholding statute, a zoning ordinance, that prohibited three persons not related by blood or marriage from living together] [or as stated by Justice Douglas, writing for the majority: "Belle Terre is a village on Long Island's north shore of about 220 homes inhabited by 700 people. Its total land area is less than one square mile. It has restricted land use to one-family dwellings excluding lodging houses, boarding houses, fraternity houses, or multiple-dwelling houses. The word "family" as used in the ordinance means, "one or more persons related by blood, adoption, or marriage, living and cooking together as a single housekeeping unit, exclusive of household servants. A number of persons but not exceeding two (2) living and cooking together as a single housekeeping unit though not related by blood, adoption, or marriage shall be deemed to constitute a family."]

What do these cases say? That blood relation is protected while non-blood relation is not? More on that dichotomy below. But back to Justice Powell's concurrence in Zablocki v. Redhail...what did he write?

"Marriage AND family life."

That is the key to the whole affair. Or as stated in Roberts v. United States Jaycees:

"The Court has long recognized that, because the Bill of Rights is designed to secure individual liberty, it must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State. E.g., Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925); Meyer v. Nebraska, 262 U.S. 390, 399 (1923). Without precisely identifying every consideration that may underlie this type of constitutional protection, we have noted that certain kinds of personal bonds have played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs; they thereby foster diversity and act as critical buffers between the individual and the power of the State. See, e.g., Zablocki v. Redhail, 434 U.S. 374, 383-386 (1978); Moore v. East Cleveland, 431 U.S. 494, 503-504 (1977) (plurality opinion); Wisconsin v. Yoder, 406 U.S. 205, 232 (1972); Griswold v. Connecticut, 381 U.S. 479, 482-485 (1965); Pierce v. Society of Sisters, supra, at 535. See also Gilmore v. City of Montgomery, 417 U.S. 556, 575 (1974); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460-462 (1958); Poe v. Ullman, 367 U.S. 497, 542-545 (1961) (Harlan, J., dissenting). Moreover, the constitutional shelter afforded such relationships reflects the realization that individuals draw much of their emotional enrichment from close ties with others. Protecting these relationships from unwarranted state interference therefore safeguards the ability independently to define one's identity that is central to any concept of liberty. See, e.g., Quilloin v. Walcott, 434 U.S. 246, 255 (1978); Smith v. Organization of Foster Families, 431 U.S. 816, 844 (1977); Carey v. Population Services International, 431 U.S. 678, 684-686 (1977); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-640 (1974); Stanley v. Illinois, 405 U.S. 645, 651-652 (1972); Stanley v. Georgia, 394 U.S. 557, 564 (1969); Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).

[and here we come to the key part, and the emphasis is mine]

The personal affiliations that exemplify these considerations, and that therefore suggest some relevant limitations on the relationships that might be entitled to this sort of constitutional protection, are those that attend the creation and sustenance of a family -- marriage, e.g., Zablocki v. Redhail, supra; childbirth, e.g., Carey v. Population Services International, supra; the raising and education of children, e.g., Smith v. Organization of Foster Families, supra; and cohabitation with one's relatives, e.g., Moore v. East Cleveland, supra. Family relationships, by their nature, involve deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs, but also distinctively personal aspects of one's life. Among other things, therefore, they are distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship. As a general matter, only relationships with these sorts of qualities are likely to reflect the considerations that have led to an understanding of freedom of association as an intrinsic element of personal liberty. Conversely, an association lacking these qualities -- such as a large business enterprise -- seems remote from the concerns giving rise to this constitutional protection. Accordingly, the Constitution undoubtedly imposes constraints on the State's power to control the selection of one's spouse that would not apply to regulations affecting the choice of one's fellow employees. Compare Loving v. Virginia, 388 U.S. 1, 12 (1967), with Railway Mail Assn. v. Corsi, 326 U.S. 88, 93-94 (1945)."

You see, we don't protect marriage for the sake of protecting marriage. We protect marriage for the sake of protecting family. Recall what I posted re the UN's Universal Declaration of Human Rights. Again, subsection (3) of Article 16:

"The family is the natural and fundamental group unit of society and is entitled to protection by society and the State."

And that's why we protect marriage. And that's why the UN's Universal Declaration of Human Rights has the marriage part in the same place as the family part. And that's why Justice Powell's concurrence in Zablocki v. Redhail provides, as related:

"This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment."

So, marriage AND family life. And that's why, again, Roberts v. United States Jaycees provides, as related:

"The personal affiliations that exemplify these considerations, and that therefore suggest some relevant limitations on the relationships that might be entitled to this sort of constitutional protection, are those that attend the creation and sustenance of a family..."

And that is why I am saying that the state does not deprive anyone of either due process of law or the equal protection of the law by refusing to allow homosexuals to marry. By definition, they cannot CREATE a family of their own. They will need the help of someone outside of the marriage in order to begin a family.

Now on to the repeal of our adultery statutes. Not for the reasons posited by you. Instead, going to back to the ritual of the broken-necked heifer and its abolition [at least in practice], as the Midrash reports, when murders increased, the people stopped performing the ritual. So too here, adultery simply became so widespread that it was either repeal the law or look absurd by having a law on the books that was not going to be enforced because society was simply not willing to expend the time and money to jail all of the adulterers. And you can call it moral cowardice if you like.

Re the rational basis test and interracial marriage, no, an anti-miscegenation statute would not survive a rational basis standard of review since there is (1) no legitimate state purpose served by prohibiting interracial marriage, and (2) no rational reason otherwise explains why "black" should not be able to marry "white." And, more to the point, remember the standard, "FREE men." How free were "blacks?" And, true, Loving v. Virginia did apply strict scrutiny. But as noted in the majority opinion:

"Indeed, two members of this Court have already stated that they "cannot conceive of a valid legislative purpose . . . which makes the color of a person's skin the test of whether his conduct is a criminal offense."

So, if there is no valid legislative purpose, the statute fails even the rational basis test and we need not even get anywhere near strict scrutiny.

And re "FREE men":

"The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."

Need I say that we have the civil war amendments precisely so that "blacks" could be free men? And so the statute fails the 14th Amendment.

And recall what I said prior about the state having a rather compelling interest in its continued existence? Well, from Loving:

"Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival."

And that's why marriage is a fundamental right, and the homosexual couple simply cannot, of themselves, ensure "our very existence and survival," since again, they will need some help from someone outside of the marriage. And by the way, does the one who supplied the egg or the sperm need to be on the hook for child support? I mean, after all, they are the child's parent, yes? We'll leave the totality of that discussion for another thread and day.

You also stated, referring to homosexual couples and their adopted children:

"Shouldn't a child raised by such dedicated parents who are so very interested in having a family be allowed to be raised in what the State considers the ideal environment in which to raise children?"

That's the problem. They are not the child's parents, or at least one of them is not the child's parent. "Parent" comes from the Latin "parere", meaning "to give birth to." And one of them had no relationship to the birth process, i.e., one of them did not contribute any of the genetic material necessary to create that child. There's that word "create" again, as related and discussed above.

You otherwise "avoided" part of what I said prior, to wit, that the state already takes care of those raising children, which explains why one gets a tax write-off for being "head of household" [homosexuals included] and/or the person on whom the child is otherwise dependent [homosexuals included].

And, lastly, I am otherwise sorry, but it is hardly my fault, as I am not the one who determined that humans reproduce sexually. But it is our rather basic, or fundamental, human biological reality, and I don't see what we gain when we try to pretend otherwise.

Sorry, one more. When you report that our society is changing re this and that, you still need account for the fact that even humans in "liberal" states are opposed to same sex marriage and so have never failed to pass legislation prohibiting the same. What does that say about your arguments re the abolition of criminal laws prohibiting adultery, sodomy, etc?

First, let me ask you to please use quote boxes. It is very difficult to follow your argument when you include huge chunks of other people's words and immediately follow it with yours. I appreciate the research you are doing, but if you could just make it easier to read that would be great.

Redhail held that marriage was a fundamental right.

As for Powell's reference to homosexuality, yes, he believed that Wisconsin could have – in 1978 – a ban related to homosexuals and marriage... and I agree with him on that point at that time. Wisconsin's sodomy law was not repealed until 1983 – 5 years after this decision was made. As I have always stated, any state with a sodomy law should not allow same-sex marriage. But, as I stated in my earlier post, most States repealed sodomy laws and the rest were dealt with in Lawrence v. Texas.



This does not mean that all of this network of restrictions would not pass constitutional muster. Polygamy laws pass strict scrutiny because of the "compelling state purpose" to continue to provide equal protections for spouses and children in marriage. As I have stated many times in other threads, to allow for polygamy would open the door to abuse because the institution of marriage is set up to accomodate couples... one person marries one other and the assets are shared equally. When one person marries more than one other person, a problem arises – that one person is married to each other person individually and not as a group... there are separate licenses, separate contracts for each person married. How can there be a 50-50, equal sharing of assets between one person and 2 others. What if one person decides to leave? Are they entitled to 50% of the other persons assets as the law allows? Now, the government does not have to prove that polygamy can fit into a system of marriage that has been modified to accomodate it, it only has to prove that polygamy does not fit into the current system of marriage in order to pass strict scrutiny. What is necessary in order for the government to offer equal protection among spouses? It limits the number of people an individual can marry. Strict Scrutiny standard met.

Incest, as I stated, is illegal. The state has a compelling interest in preventing illegal activity. Is it necessary to ban incestuous marriage in order to further that interest? Certainly. Strict Scrutiny standard met. So, Powell didn't need to worry about any of those relationships passing the strict scrutiny standard of review – even, in Wisconsin at the time, same-sex marriage. The question arises: Could you ban incestuous marriage if incest were legalized? If states repealed their incest laws, could you continue to ban incestuous marriage? Where would Powell's opinion lie in the face of that scenario?



No, they do not. Both cases say that a relation by marriage is protected and that a married couple is defined as a "family". Married people are not blood relations.



Being that same-sex couple's can be a family (as defined by law) and can have children present in those families, families are still protected if same-sex marriage is allowed.





Seems to me a same-sex couple is a family under this definition. They can raise children as a part of that family as well, because under adoption laws they are considered the parents of that child. (More on this later...)



Are the statutes repealed? Are they enforced? No. So, what is the State's view on adultery? One of moral cowardice? Fine, but don't then argue that the State has an interest in preventing adultery as part of the reason it regulates marriage. It obviously no longer regulates this aspect of the marriage agreement.



Again, I was discussing the Collins test as it relates to a challenge against Article 1, Sec. 23 of the Indiana State Constitution. I was not discussing a challenge to the United States Constitution. Interracial marriage does not pass the Collins test – different from the rational basis test.



Procreation is not the end point in terms of survival. A couple can have sex, and have a child, sure. But does that act ensure the child's survival? No, it doesn't. They have to feed the child, they have to care for the child. You can procreate, have a child, the child dies, you have another child, the child dies, you have another child, the child dies... how does this ensure our very existence and survival? Ultimately, the raising of a child is the more important act and what actually ensures our very existence and survival. A procreated child does not ensure our very existence and survival if it does not survive. Same-sex couples are certainly capable of raising children and they do. In this sense they aid our very existence and survival by raising children that are one of the couple's own or are unwanted by the couple that created them. Surely, our very existence and survival is aided by same-sex couples that raise children.



I see, and those married heterosexual couples that do not procreate but adopt... they aren't the child's parents? In this day and age we have what are called biological parents and adoptive parents. According to the State, adoptive parents assume the parental responsibilities for a child and raise them as their own. So while the etymology of the word parent may relate to procreation, the word parent now deals also with an individual who raises a child (whether they gave birth to it or not).



But you would agree that marriage is the ideal environment in which to raise children, right? And that the State regulates marriage in order to maintain that ideal environment, yes?



No need to apologize, let the humans continue to reproduce sexually. I'm all for it. In fact, I one day hope to do the same. Nobody is trying to pretend otherwise. You are equating procreation with raising children and making the two mutually exclusive, but they aren't. While procreation is necessary in order to raise a child, raising a child does not necessarily require that one procreate.



It only goes to show that the majority wants to have their cake and eat it, too. But that's why we have a Bill of Rights... partly to protect the minority from the majority. Obviously, the majority wanted their to be a ban on interracial marriage, but they couldn't have that because of the existence of our Bill of Rights.

I don't believe you've satisfactorily answered your own standard here when comparing same-sex marriages to interracial marriage.

(1) no legitimate state purpose served by prohibiting interracial marriage

You seem to be arguing that the state has a legitimate purpose to preventing homosexual marriage. Yet, if you look at Entspeak's reply, you can see that there are clearly there are concrete benefits provided to children who are parented by same-sex couples if that same-sex couple is allowed to marry. For instance, employers would be required to provide health insurance for a child, even if the non-employed partner is the legal guardian of the child.

This is a definitive and measurable benefit as defined by your own interpretation of the purpose of state-sponsored marriage (as I understand it, to help facilitate stable familial relationships.) I believe this is a clear pass.

(2) no rational reason otherwise explains why "black" should not be able to marry "white."

Did I miss when you explained the rational explanation of why "man should not be able to marry man?" Since we're talking rational, we obviously have to throw religion out of this argument. Since Rational essentially means "reasonable" I don't believe "God told Abraham so, and that's how it is." Is a suitable argument, as it certianly cannot be reasoned with.

I believe the closest you have come to a rational explanation is:



But this is not a rational reason for preventing marriage between the two, because it does not adequately demonstrate a concrete negative implication of allowing same-sex marriage.

Put simply: Is the fact that both parents cannot be biological a rational explanation for disallowing marriage between two people? I would have to say that we've already determined in past debates that using this as the crux of an explanation of why same-sex marriage can't work is an inherently hypocritical argument since the state has no problem with two completely barren people getting married.

Certainly you're not suggesting that state-sponsored marriage essentially is about penile to vaginal intercourse? I believe same-sex marriage has already demonstrated it can and has provided every other benefit that traditional marriage offers. If it can (which I don't believe you've contested), then where is the rational basis for disallowing it?

And finally to quickly address your point:
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