Attorney Discerning

Just another poor dumb sinner; trying to do what he can for Christ & His Church

Thursday, February 07, 2008

[FROM Standhardt v. Super. Ct of Ariz.,

[FROM Standhardt v. Super. Ct of Ariz., 206 Ariz. 276, 77 P.3d 451 (Ariz.App. 2003)],(Ariz. Supreme Court review denied 2004 Ariz. LEXIS 62 (Ariz., May 25, 2004)-- a state appeals court ruling denying a claim for same-sex marriage:

..."P34. Petitioners argue that the State's asserted basis for restricting marriage to opposite-sex couples is not rationally related to a legitimate state interest for several reasons, which we address in turn. First, Petitioners briefly contend that a state's interest in procreation and protecting children can never justify a law infringing upon the right to marry, because the Supreme Court has stated that the right to marry belongs to individuals rather than families or society. See Griswold, 381 U.S. at 486 (striking state law banning distribution of condoms to married couples and describing marriage, in part, as "a bilateral loyalty, not [a] commercial or social project[]"); Loving, 388 U.S. at 12 ("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."). Although Griswold and Loving described marriage as a personal right, neither case suggested that a state cannot infringe upon that right for social purposes, such as encouraging procreation and protecting children. Indeed, the Court recognized in Loving that "marriage is a social relation subject to the State's police power." 388 U.S. at 7. We therefore reject Petitioners' contention.

P35. Petitioners more persuasively argue that the State's attempt to link marriage to procreation and child-rearing is not reasonable because (1) opposite-sex couples are not required to procreate in order to marry, and (2) same-sex couples also raise children, who would benefit from the stability provided by marriage within the family. 16 However, as the State notes, "[a] perfect fit is not required" under the rational basis test, and we will not overturn a statute "merely because it is not made with 'mathematical nicety, or because in practice it results in some inequality.'" (citations omitted).

P36. Allowing all opposite-sex couples to enter marriage under Arizona law, regardless of their willingness or ability to procreate, does not defeat the reasonableness of the link between opposite-sex marriage, procreation, and child-rearing. First, if the State excluded opposite-sex couples from marriage based on their intention or ability to procreate, the State would have to inquire about that subject before issuing a license, thereby implicating constitutionally rooted privacy concerns. See Griswold, 381 U.S. at 485-86; Eisenstadt, 405 U.S. at 453-54; Adams, 486 F. Supp. at 1124-25 (recognizing government inquiry about couples' procreation plans or requiring sterility tests before issuing marriage licenses would "raise serious constitutional questions"). Second, in light of medical advances affecting sterility, the ability to adopt, and the fact that intentionally childless couples may eventually choose to have a child or have an unplanned pregnancy, the State would have a difficult, if not impossible, task in identifying couples who will never bear and/or raise children. Third, because opposite-sex couples have a fundamental right to marry, Loving, 388 U.S. at 12, excluding such couples from marriage could only be justified by a compelling state interest, narrowly tailored to achieve that interest, Glucksberg, 521 U.S. at 721, which is not readily apparent.

P37. For these reasons, the State's decision to permit all qualified opposite-sex couples to marry does not defeat the reasonableness of the link between opposite-sex marriage, procreation, and child-rearing. See Adams, 486 F. Supp. at 1124-25 (rejecting challenge to same-sex marriage prohibition on basis that opposite-sex couples not required to prove or declare willingness to procreate in order to marry); Baker, 291 Minn. at 313-14, 191 N.W.2d at 187 (same).".....

Apparently, Topix no longer maintains my post that I linked to above, so here's an excerpt on the UNDERINCLUSION/OVERINCLUSION fallacy so often used here:

It's long past time to have a thread addressing one of the gay-marriage advocates' most persistent claims.

That persistent claim is that a civil marriage restriction because of the heterosexual ability to naturally procreate is a constitutionally-invalid restriction or limitation on "the right to marry", because the restriction "discriminates" against homosexual couples who procreate by artificial means and that it on the other hand "discriminates" in favor of heterosexual couples who are childless and therefore who don't procreate at all.

There is a name for these distinctions in the effects of various laws -- these distinctions are called "underinclusiveness" and "overinclusiveness".


A characteristic of a statute or administrative rule dealing with First Amendment rights and other fundamental liberty interests, whereby the statute prohibits some conduct but fails to prohibit other, similar conduct.

An underinclusive law is not necessarily unconstitutional or invalid. The U.S. Supreme Court has recognized that all laws are underinclusive and selective to some extent. If a law is substantially underinclusive, however, it may be unconstitutional.

A law is not necessarily invalid just because it is underinclusive. For example, a statute that prohibited the use of loudspeaker systems near a hospital might be underinclusive for failing to prohibit shouting or the use of car horns in the same area. This type of underinclusiveness concerns only the manner of delivering speech, however, and is therefore more likely to pass constitutional scrutiny than a statute that prohibits speech on particular subjects."....
As you might logically guess then, "overinclusiveness" is generally the flip side of underinclusiveness -- "overinclusiveness" involves a claim that a law ALLOWS some conduct but fails to allow other, similar conduct.

Yes women fought for the right to vote. Some religious people were against it and some for it. The suffragettes were a Church based movement in themselves, with many prominent figures being highly devout Christians.

But more to the point - women “fought” for the right to vote. They went out & convinced people that they should have the vote. This required a Federal Constitutional Amendment. Eventually (within a generation) they convinced enough Americans that it was voted in. This means men (who were the only ones who could vote) were convinced enough to give women what they deserved.

Compare that with the imposition of same-sex “marriage” on an unwilling populace through the courts. Gays don’t have enough respect for their fellow citizens & the system to take that route. They realize their agenda is bad public policy & is rightfully rejected; so they have to force it on the country.

Now… Think about this.
The 19th amendment (women’s vote) comes AFTER the 14th amendment..
If the 14th is such an elastic, equal protection guarantor of minority rights, then why did a group that did not even have the ability to vote themselves require a Federal Constitutional Amendment – while today, (a group that can vote & organize- gays) sees fit to use judicial usurpation to enact their agenda?

California Supreme Court to Consider Gay Marriage Issue

The Supreme Court will hear three hours of arguments on the issue March 4 in San Francisco. Justices then have 90 days to rule.

The six consolidated cases being heard together challenge state laws limiting marriage to opposite-sex couples. The Supreme Court has banned same-sex marriages in the state until it decides the issue.

No I don’t "think" that’s what SCOTUS was referring to I KNOW that’s what they are referring to.

The Quote you use is indeed from Loving v Virginia

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

But it is the Loving court quoting the precedent of Skinner v. Oklahoma

That’s a case challenging Oklahoma's Habitual Criminal Sterilization Act, the Court based its finding on the fact that procreation was a fundamental right which belonged to all citizens. In this decision, the Supreme Court held that the acts of marriage and procreation were fundamental rights.
The state found that they have a valid role in regulating marriage as a social institution, , finding the institution of marriage, social in nature, & a basic civil right that cannot be restricted without very good reason.
The connection between marriage & procreation is seen as fundamental to the nature of marriage as a fundamental right. It is not linked with marriage because procreation outside marriage is somehow impossible (A system that merely wanted to promote procreation would look quite different) Rather it is responsible procreation in the promotion of family formation that gives the fundamental right it civic power.

That right realizes that procreation is inevitable but the linking of marriage is “is one of the "basic civil rights of man," fundamental to our very existence and survival.” Because it provides for the basic family unit of binding the natural mother & father together and each to the child(ren).
For what it's worth, this is incorrect historically. By the first couple centuries of the common era, Greco-Roman culture had embraced a wide array of ideals of virginity, and ideals of sexual morality in which the best path is either virginity or sex only within marriage only for procreation. These weren't universally held by any means, but neither were the early Christians universally practicing ascetics.

See, for instance, Michel Foucault, History of Sexuality, vol 3: The Care of the Self
Paul Veyne, Sexe et pouvoir ࠒome
Kate Cooper, The Virgin and the Bride and Jennifer Knust, Abandoned to Lust have good takes on this looking more at Christian literature.

It's a common misreading of antiquity to suggest that the pre-Christian pagans were sex-mad hedonists, or well-balanced pro-sex liberals, but this is not the case.

It makes sense from a historical perspective - early Christian culture was not a sudden sui generis event unrelated to Greco-Roman culture, but a development internal to that Greco-Roman culture which shared many of its norms and ideals.

A change does occur in the sexing of the body, but it's not one that provides a more "healthy" attitude toward sex.