A secular case against SSM

[_wenglund]

3) Even heterosexual couples that are obviously infertile are eligible for marriage, while lesbians (who give birth in larger proportions than you may realize) are not. This implies that there is actually some other reason that marriage laws are the way they are. Given the long, sordid history of discrimination against homosexuals, the likelihood that this reason is "discrimination" is far too high to justify differential treatment for this group in this circumstance.

The Supreme Court of Indiana addressed this contention (though stated in a much more intelligent and more comprehensive way):

"Finally, they [the plaintiffs] 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. Becoming a parent by using 'artificial' reproduction methods is frequently costly and time-consuming. Adopting children is much the same. 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. 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 environment 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.' 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. (see Morrison v Sadler)

Thanks, -Wade Englund-

[_Analytics]

"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. 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 environment 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 California Supreme Court responded to this line of argument as follows:

"Whether or not the state’s interest in encouraging responsible procreation
properly can be viewed as a reasonably conceivable justification for the statutory
limitation of marriage to a man and a woman for purposes of the rational basis
equal protection standard, this interest clearly does not provide an appropriate
basis for defining or limiting the scope of the constitutional right to marry. None
of the past cases discussing the right to marry — and identifying this right as one
of the fundamental elements of personal autonomy and liberty protected by our
Constitution — contains any suggestion that the constitutional right to marry is
possessed only by individuals who are at risk of producing children accidentally,
or implies that this constitutional right is not equally important for and guaranteed
to responsible individuals who can be counted upon to take appropriate
precautions in planning for parenthood. Thus, although the state undeniably has a
legitimate interest in promoting “responsible procreation,” that interest cannot be
viewed as a valid basis for defining or limiting the class of persons who may claim
the protection of the fundamental constitutional right to marry.

"Furthermore, although promoting and facilitating a stable environment for
the procreation and raising of children is unquestionably one of the vitally
important purposes underlying the institution of marriage and the constitutional
right to marry, past cases make clear that this right is not confined to, or
restrictively defined by, that purpose alone. (See, e.g., Baker v. Baker, supra, 13
Cal. 87, 103 [“[t]he second purpose of matrimony is the promotion of the
happiness of the parties by the society of each other”].) As noted above, our past
cases have recognized that the right to marry is the right to enter into a relationship
that is “the center of the personal affections that ennoble and enrich human life”
(DeBurgh v. DeBurgh, supra, 39 Cal.2d 858, 863-864) — a relationship that is “at
once the most socially productive and individually fulfilling relationship that one
can enjoy in the course of a lifetime.” (Marvin v. Marvin, supra, 18 Cal.3d 660,
684; see also Elden v. Sheldon, supra, 46 Cal.3d 267, 274.) The personal
enrichment afforded by the right to marry may be obtained by a couple whether or
not they choose to have children, and the right to marry never has been limited to
those who plan or desire to have children. Indeed, in Griswold v. Connecticut,
supra, 381 U.S. 479 — one of the seminal federal cases striking down a state law
as violative of the federal constitutional right of privacy — the high court upheld a
married couple’s right to use contraception to prevent procreation, demonstrating
quite clearly that the promotion of procreation is not the sole or defining purpose
of marriage. Similarly, in Turner v. Safley, supra, 482 U.S. 78, the court held that
the constitutional right to marry extends to an individual confined in state
prison — even a prisoner who has no right to conjugal visits with his would-be
spouse — emphasizing that “[m]any important attributes of marriage remain . . .
after taking into account the limitations imposed by prison life . . . [including the]
expressions of emotional support and public commitment [that] are an important
and significant aspect of the marital relationship.” (482 U.S. at pp. 95-96.)"

[_wenglund]

It's not really state interest. It's the interest of the people that drive the formation and relevant interest of the state. You're looking at this in an oddly authoritarian way.

Yes, it really is a state interest, and no, I am not looking at this in an oddly authoritarian way. I am thinking in terms of government "of the people, by the people, for the people". Perhaps you have heard of this? I am also speaking of the notion as it is legally understood (see legal definition of State Interest).

Well, the government is either morally obligated to recognize certain contracts and deal with them or not depending on the factors at play. You have to be careful not to imply that it is a matter of the whim of the government or what serve's the governments' interests. What matters is whether the rights of the people are secured and whether the welfare of the people are advanced by this or not. But this is already what Gad was getting at. The first step is understanding the arrangements are the people's right. The second step is reading why it's a good idea for the state to mediate these arrangements to the extent it is.

You have the legal steps exactly backwards. First, a social problem is brought before the legislature, and using legislative review the congress considers whether it is in the state's interest to enact a law that solves the social problem and if so how to frame the law to best meet the state's interest. Second, using judicial review, the proposed or enacted law is examined to see if it will pass constitutional muster--i.e. determine what, if any, rights may be abridged by the law, and if so whether the state interest constitutionally warrants the abridgement.

With SSM, the courts have near unanimously ruled that no right is being abridged by limiting legal marriage to opposite-sex couples. Again, while same-sex couples, or incestuous couples, or children couples, or adult and child couples, or adults and animal or plant couples, are all free to consider themselves married and to enter into a marital contract, they do not have a right to obligate the state to sanction their marital contracts. Only the state has a right to determine constitutionally what type of marital contracts it will contractually agree to sanction, and this according to state interest.

Thanks, -Wade Englund-

[_wenglund]

The California Supreme Court responded to this line of argument as follows:

"Whether or not the state’s interest in encouraging responsible procreation properly can be viewed as a reasonably conceivable justification for the statutory limitation of marriage to a man and a woman for purposes of the rational basis equal protection standard, this interest clearly does not provide an appropriate basis for defining or limiting the scope of the constitutional right to marry. None of the past cases discussing the right to marry — and identifying this right as one of the fundamental elements of personal autonomy and liberty protected by our Constitution — contains any suggestion that the constitutional right to marry is possessed only by individuals who are at risk of producing children accidentally, or implies that this constitutional right is not equally important for and guaranteed to responsible individuals who can be counted upon to take appropriate precautions in planning for parenthood. Thus, although the state undeniably has a legitimate interest in promoting “responsible procreation,” that interest cannot be viewed as a valid basis for defining or limiting the class of persons who may claim the protection of the fundamental constitutional right to marry.

This isn't so much a counter to the argument as it is ignorance that the argument has actually been legally made and upheld by the state supreme court of Indiana. It is ignorant of at least one legal precedent. And, it merely represents an opposing view (not to be confused with a counter argument) that is in part based on ignorance, though I respect the California Supreme Court's right to hold that view.

It also evidently lacks familiarity with a Massachusetts Supreme Court ruling which says:

"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,

"Furthermore, although promoting and facilitating a stable environment for the procreation and raising of children is unquestionably one of the vitally important purposes underlying the institution of marriage and the constitutional right to marry, past cases make clear that this right is not confined to, or restrictively defined by, that purpose alone. (See, e.g., Baker v. Baker, supra, 13 Cal. 87, 103 [“[t]he second purpose of matrimony is the promotion of the happiness of the parties by the society of each other”].)

This isn't a counter to the Indiana ruling since nowhere in the ruling does it suggest that "stabile environment" is the only purpose for restricting marriage to same-sex couples.

I will address the remainder of your quote in my next post.

Thanks, -Wade Englund-

[_Analytics]

This isn't so much a counter to the argument as it is ignorance that the argument has actually been legally made and upheld by the state supreme court of Indiana....

If they were ignorant that the argument had actually made I doubt they would have responded to it.

In any case, I find this line of reasoning quite amusing: heterosexual couples need the crutch of marriage because they are likely to have children with "no foresight or planning" and because "'accidents' do happen". In contrast, homosexuals don't need the crutch of marriage because when they have families, they are "invested, financially and emotionally, in those processes" and their families are the result of a "great deal of foresight and planning."

Carry on!

[_wenglund]

"Furthermore, although promoting and facilitating a stable environment for the procreation and raising of children is unquestionably one of the vitally important purposes underlying the institution of marriage and the constitutional right to marry, past cases make clear that this right is not confined to, or restrictively defined by, that purpose alone. (See, e.g., Baker v. Baker, supra, 13 Cal. 87, 103 [“[t]he second purpose of matrimony is the promotion of the happiness of the parties by the society of each other”].) As noted above, our past cases have recognized that the right to marry is the right to enter into a relationship that is “the center of the personal affections that ennoble and enrich human life” (DeBurgh v. DeBurgh, supra, 39 Cal.2d 858, 863-864) — a relationship that is “at once the most socially productive and individually fulfilling relationship that one can enjoy in the course of a lifetime.” (Marvin v. Marvin, supra, 18 Cal.3d 660, 684; see also Elden v. Sheldon, supra, 46 Cal.3d 267, 274.) The personal enrichment afforded by the right to marry may be obtained by a couple whether or not they choose to have children, and the right to marry never has been limited to those who plan or desire to have children. Indeed, in Griswold v. Connecticut, supra, 381 U.S. 479 — one of the seminal federal cases striking down a state law as violative of the federal constitutional right of privacy — the high court upheld a married couple’s right to use contraception to prevent procreation, demonstrating quite clearly that the promotion of procreation is not the sole or defining purpose of marriage. Similarly, in Turner v. Safley, supra, 482 U.S. 78, the court held that the constitutional right to marry extends to an individual confined in state prison — even a prisoner who has no right to conjugal visits with his would-be spouse — emphasizing that “[m]any important attributes of marriage remain . . .after taking into account the limitations imposed by prison life . . . [including the] expressions of emotional support and public commitment [that] are an important and significant aspect of the marital relationship.” (482 U.S. at pp. 95-96.)"

This, too, isn't a counter-argument, but raises its own argument. What is interesting, though, is that Baker v Baker, and DeBurgh v DeBurgh, and Marvin v Marvin, each involve opposite and not same sex marriages. The point being, that the "personal affections that ennoble and enrich human life" and are the "most socially productive and individually fulfilling relationship that one can enjoy in the course of a lifetime" mentioned in the rulings, are not intended to be interpreted generally in terms of any or all "parties" or any kind of "relationship", but were specific to marriage between a man and a woman.

Besides, while Griswold v. Conn. and Tuner v. Safley are cited in a number of other state and federal SSM cases, the ruling above conveniently fails to mention that in most all the previous state cases (the case in Mass. Being the sole exception), and all the federal cases, the purposes of marriage, and the state interest in sanctioning marriage, were explicitly said to apply to opposite-sex marriage and not to same-sex marriages.

Thanks, -Wade Englund-

[_wenglund]

This isn't so much a counter to the argument as it is ignorance that the argument has actually been legally made and upheld by the state supreme court of Indiana....

If they were ignorant that the argument had actually made I doubt they would have responded to it.

They weren't countering an argument that hadn't been made. They were making their own original argument.

Thanks, -Wade Englund-

[_Jaybear]

Here is how Judge Taylor of the Federal District Court of California summarized the argument:

"...the DOMA has a rational basis and serves a justifiable purpose by encouraging marriage and procreation. 'Because procreation is necessary to perpetuate humankind, encouraging the optimal union for procreation is a legitimate government interest,'...'By excluding same-sex couples from the federal rights and responsibilities of marriage, and by providing those rights and responsibilities only to people in opposite-sex marriages, the government is communicating to citizens that opposite-sex relationships have special significance' ... 'Encouraging the optimal union for rearing children by both biological parents is also a legitimate purpose of government. The argument is not legally helpful that children raised by same-sex couples may also enjoy benefits, possibly different, but equal to those experienced by children raised by opposite-sex couples. It is for Congress, not the Court, to weigh the evidence.'” (see: HERE).

Wow. Some of the best legal minds in the country at their disposal, and that is the best "rational" argument they could come up with. That is really quite sad.

"Procreation is necessary to perpetuate mankind"

"by providing those rights and responsibilities only to people in opposite-sex marriages, the government is communicating to citizens that opposite-sex relationships have special significance"

The implication being that if the government doesn't tell heterosexuals that they are special, they won't get married, and procreate.

I didn't realize that us heterosexuals were so pathetic.

[_Some Schmo]

Wow. Some of the best legal minds in the country at their disposal, and that is the best "rational" argument they could come up with. That is really quite sad.

"Procreation is necessary to perpetuate mankind"

"by providing those rights and responsibilities only to people in opposite-sex marriages, the government is communicating to citizens that opposite-sex relationships have special significance"

The implication being that if the government doesn't tell heterosexuals that they are special, they won't get married, and procreate.

I didn't realize that us heterosexuals were so pathetic.

No doubt.

What's amusing to me is this line: 'Because procreation is necessary to perpetuate humankind, encouraging the optimal union for procreation is a legitimate government interest..." If that's the case, they should ban contraception too, since that inhibits "optimal union for procreation."

If they think marriage is the "optimal union" then they really are ignoring a great number of married couples.

It's all such BS.

[_Jaybear]

What's amusing to me is this line: 'Because procreation is necessary to perpetuate humankind, encouraging the optimal union for procreation is a legitimate government interest..." If that's the case, they should ban contraception too, since that inhibits "optimal union for procreation."

It's all such BS.

Of course its all BS. The Feds didn't passed DOMA to promote procreation by heterosexuals. They passed DOMA because a significant portion of the voters believe the homosexuality is an abomination to God.