Responsible procreation, optimal child-rearing

I read through the actual ruling that district court Judge Shelby wrote to strike down Utah's Amendment 3 which banned same-sex marriage. Various commenters in various blogs had said how thoroughly this ruling undercuts our opponent's arguments and supports marriage equality. Here is my summary (much shorter than 53 pages) of his reasoning.

The ban violates due process rights, an individual has fundamental rights free from unreasonable interference from the state. While the state may regulate marriage (the "incidents, benefits, and obligations of marriage") it can only do so in a way that does not conflict with the US Constitution.

The 14th Amendment says the Bill of Rights applies to states.

Fundamental rights "may not be submitted to vote; they depend on the outcome of no elections." (So why are we being subjected to votes on marriage equality?)

There are several cases in which the Supremes declare that marriage is a fundamental right, including Loving v. Virginia that struck down laws that banned mixed-race marriages.

Utah claimed that a gay person is still at liberty to marry a person of the opposite sex. The court replied, "But this purported liberty is an illusion. … If marriages were planned and arranged by the State, for example, these marriages would violate a person’s right to marry because such arrangements would infringe an individual’s rights to privacy, dignity, and intimate association." In addition, "The State accepts without contest the Plaintiffs’ testimony that they cannot develop the type of intimate bond necessary to sustain a marriage with a person of the opposite sex." And, "The Plaintiffs’ testimony supports their assertions that their sexual orientation is an inherent characteristic of their identities." Finally, "Given these undisputed facts, it is clear that if the Plaintiffs are not allowed to marry a partner of the same sex, the Plaintiffs will be forced to remain unmarried. The effect of Amendment 3 is therefore that it denies gay and lesbian citizens of Utah the ability to exercise one of their constitutionally protected rights."

Utah claimed that same-sex couples are not qualified to marry because they cannot procreate. The reply: "The court does not find the State’s argument compelling because, however persuasive the ability to procreate might be in the context of a particular religious perspective, it is not a defining characteristic of conjugal relationships from a legal and constitutional point of view." In addition that claim demeans gay couples, post-menopausal women, an infertile men. And gay couples are just as good at taking care of children as are grandparents. Besides that, marriage is more than procreation, it was "an expression of emotional support and public commitment, it was spiritually significant, and it provided access to important legal and government benefits." All that applies to straight and gay couples alike.

Utah claimed that same-sex couples are seeking a new right. The reply: If it is a new right, there are new protections and benefits available to all. But straight people are as likely to enter into a same-sex marriage as gay people are in entering into an opposite-sex marriage. So both are manifestations of the same right.

Utah claimed that tradition and history are sufficient reasons to deny a fundamental right. The reply: Our understanding changes with time and our laws must change too. The example given is Lawrence v. Texas which struck down criminalization of gay sex. "Here, it is not the Constitution that has changed, but the knowledge of what it means to be gay or lesbian. The court cannot ignore the fact that the Plaintiffs are able to develop a committed, intimate relationship with a person of the same sex but not with a person of the opposite sex."

Utah argued that there are proper government interests in responsible procreation and optimal child-rearing and that these goals would not be furthered if same-sex couples could marry. The reply: The first part of that statement is true -- the gov't does have an interest in responsible procreation and optimal child-rearing. But it "defies reason to conclude that allowing same-sex couples to marry will diminish the example that married opposite-sex couples set for their unmarried counterparts. … Because Amendment 3 does not currently permit same-sex couples to engage in sexual activity within a marriage, the State reinforces a norm that sexual activity may take place outside the marriage relationship." As for optimal child rearing, "Similarly, the State has presented no evidence that opposite-sex couples will base their decisions about having children on the ability of same-sex couples to marry." The ban humiliates thousands of children already being raised by same-sex couples, makes it difficult for these kids to understand their family, denies their family state and federal benefits, and injures gay youth who see the state does not believe they can create a family.

Utah says we should proceed with caution in such a sensitive case. The reply: The state could make that claim with any case, which would make the court toothless. In addition, the fourteen other states with same-sex marriage show the state's fears are groundless.

Utah says there is an interest in preserving the traditional definition of marriage. The reply: "But tradition alone cannot form a rational basis for a law." In addition, the traditional definition of marriage has already changed. A dissenting Justice Scalia noted, "‘preserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same-sex couples."

Churches still have the religious freedom to define their own traditions of marriage -- including now permitting it.

Though the state can't rationally explain how it is harmed by having same-sex couples marry, there is indeed harm done to same-sex couples when they cannot marry. The Supreme decision that struck down parts of DOMA was very clear about that.