Game Changing Argument

sprmcrtrnbwThere was but one question that stood before the United States Supreme Court on April 28, 2015. Does an individual state under our system of law possess the right to establish, within its own borders, an institution for the exclusive purpose of promoting the responsible procreation and rearing of children?  Now we know that our federal system grants an enormous amount of latitude to the states to craft their own laws, never presuming to interfere except where the most compelling government interest is at stake. One of those interests is the Equal Protection of the law, and it was this that was cited by five of the justices on the Court as the basis for their ruling in the Obergefell case . The claim ultimately rests entirely upon a single line of argument; an argument whose most fatal  flaw has not been widely discussed. 

The more popular phrase used to describe a violation of the Equal Protection of the law is legal discrimination. Legal discrimination is obviously more than merely a denial of something that is desired or demanded by a particular party or group; it is the inconsistent application of a particular criteria. The criteria used by a law is determined by its purpose. Now as long as this purpose can be shown to serve a “legitimate public interest”, it is valid under our system, and any criteria that the law uses may be narrowly tailored to suit that specific purpose and no more. Neither the law nor its criteria is obligated to expand beyond that original purpose to cater to anything else, even if it is contended that such an expansion would not interfere with that original purpose.  Everything that we have outlined so far is uncontested constitutional law.

 Now if we take it as a given that promoting the responsible procreation and rearing of children is a legitimate public interest, the only question that remains to be answered in this discussion is this. How can a local state institution that serves this specific legitimate public interest be charged with legal discrimination for not broadening itself to instead serve another interest? (the purpose of recognizing all relationships of a romantic/ erotic nature)?  From the inception of this debate until the present there has only ever been one line of argument for why this should be, and it is this: the fact that we willfully allow elderly, infertile and sterile individuals to marry, logically invalidates the stated purpose for the institution. The true core of the institution, it is argued,  must be seen as sexual monogamy in general, and  this  purpose is also consistent with  the goal of promoting the responsible procreation and rearing of children.  It is by this argument, and this argument alone that opponents of  traditional marriage have always assured themselves that their position had genuine legal merit, and was not merely a personal ideological preference imposed by force upon the states.  This argument is all that has separated their general stance from a clear and blatant violation of the ideals of American federalism, and of the Constitution.  What I will now demonstrate is that this argument can be conclusively refuted in a fairly simple way.

 The most publicized version of this argument was offered fairly recently by Justices Ginsberg and Kagan during the Obergefell case. They stated that if one claims that marriage revolves around procreation, this means that in principle, a state could create a law banning or nullifying marriages involving the infertile and the sterile, and since we understand intuitively that this would not be right, marriage cannot actually revolve around procreation.   But according to that very  same logic, marriage cannot revolve around sexuality either since we would never agree  with a state law that reserved the right to prevent or to nullify marriages involving the medically impotent. Such a law might be a passive enforcement policy: one  that is not actively enforced but is triggered in any instance in which the relevant medical information happens to be discovered (Passive Enforcement policies by the way have been ruled to be constitutional). However often it was triggered, the ultimate question is:  does every single medically impotent person possess an inherent right  to marry (and to remain married)? If  so, then this must mean that marriage does not truly revolve around sexuality.

Yet we understand quite well that marriage revolves around sexuality, and to claim otherwise we must pretend that we do not know the  basis of  our traditional laws against close (blood) family marriage. We must ignore the fact that medical impotence is a  grounds for annulment within the law (along with the concept of marriage consummation).  In fact Justice Kennedy’s entire argument from dignity  is dependent upon the idea that the term “marriage”  does not merely refer to a collection of government benefits (in which case the term could absolutely confer no dignity) but to a culture’s high regard for committed sexually monogamous relationships, and the desire to promote them. But let us examine for just a moment the consequences of adopting the premise that marriage does not revolve around sexuality (in case there is anyone interested to adopting the position) .  

 If marriage does not revolve around sexuality then it naturally cannot revolve around committed sexual monogamy. The problem with this position is that the very explanation for why the  same-sex marriage movement does not negate the original purpose of marriage (promoting the responsible procreation and rearing of children) is precisely because its focus is sexual monogamy (whether heterosexual or homosexual) and the idea that this in practical terms is identical to the original purpose.  But if the focus of marriage is not even sexual monogamy, the original purpose for the institution has indeed  been eliminated. For if the institution is not essentially sexual in nature but is solely about the tangible benefits themselves then, for example, close/blood family members must be permitted to take advantage of those  benefits for purely practical/ financial reasons, while of course living  their own separate sexual lives with perhaps no particular regard for commitment in  that area at all

The Same-Sex Marriage Movement must make a choice. It must either opt to remove sexuality and sexual monogamy as the core theme of the institution of marriage (in which case it cannot claim that it does not undermine the traditional purpose of marriage) or it must embrace the sexual definition of the institution; in which case its only argument against the procreative purpose of marriage is no longer viable. For once again, if the fact that we would never approve of laws limiting the rights of the medically impotent to marry does not negate the fact that marriage revolves around sexuality, then the fact that we would not approve of laws limiting the rights of the infertile and the sterile to marry cannot negate the fact that traditional marriage revolves around procreation. The reason that we do not have laws limiting the rights of either the medically impotent or the infertile/sterile to marry is because we live in a free society, and the purpose of the institution of marriage is not to enforce but to promote. I submit to the reader that the ruling of the Supreme Court on June 26th  2015 was unconstitutional;  standing in blatant violation of the 9th and 10th amendments,  and devoid of any solid grounding whatsoever in the 14th amendment of the Constitution.

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