Same-sex marriage in the U.S.

UPDATES: My sources from the last round were homepages. I corrected this and now these sources and websites should take you straight to the relevant portion I highlighted. http://www.urban.org... http://www.law.harvard.edu... http://eprints.qut.edu.au... 1. Sexual orientation and Sex discrimination: I don't agree with PRO's premise that gay individuals are being discriminated against in the first place. For instance, Bans on interracial marriage were about the segregation of protected classes (which has been deemed in the Brown decision to be another form of discrimination) without a reason that can be supported objectively. The Supreme Court has never ruled integration to be a form of discrimination, and the sexes' being able to procreate and rear children is an objective reality. Thus, it does not discriminate on the basis of sex because men and woman can equally marry someone of the opposite sex for responsible procreation and rearing of children and both cannot with the same sex because they cannot procreate. I will explain why this applies to gays and straights as well in more detail. 2. THE PURPOSE OF MARRIAGE The Fundamental right to marry: Since Marriage between a man and a woman has been held to be a fundamental right, a law excluding infertile heterosexual couples would be constitutionally unenforceable. The state couldn't survive strict scrutiny since it would be overinclusive and not narrowly tailored. When it comes to gay marriage, there is no fundamental right to gay marriage (anymore than there is for plural marriage) so the state has a 10th amendment right, as established by the U.S. Supreme Court, to deny those relationships. In addition, the rational basis test does not require over and inclusive arguments. However, for the sake of argument, even if there was a fundamental right to gay marriage, I will show how the state would be able to pass the strict scrutiny test and deny this right or discriminate in two distinct ways. Whether it be through the means or the ends. Procreation: Well first off, As I explained before, its about possibility or potentially NOT actuality of procreation and rearing of children of couples. Its still possible for heterosexual couples to procreate and rear children naturally with their own mother and father even if they end up not doing so or doing so correctly. For example, PRO's claim that prisoners can still marry is not entirely accurate. ONLY prisoners who do not have life sentences AND are marrying a civilian have a constitutionally protected right to marry. Thus, procreation and child rearing is still possible even in that situation. Also, depending on how you define close realitves, incest is outlawed in all 50 states. Now, in the case of infertile couples, In order to actually know that couples are in fact infertile, the state would have to resort to intrusive fertility tests in order to establish that they are unable to have children. However, therapy and the availability of long-term fertility may reverse the prognosis (even in post menopausal women) making it medically impossible to fully establish infertility. Not to mention, the state would have to check almost every single couple that wants a marriage license. This clearly would take a large amount of resources to accomplish. Thus, it's costly, impractical, and unconstitutional. The law rightly assumes a presumption of reproductive and child rearing potential on the part of heterosexual couples. By contrast, with same sex couples, we do not need intrusive fertility tests to establish that same sex couples are barren by biological default . Two people of the same sex can never reproduce with each other and there are inherent differences between the genders. Marriage: As stated before, the state uses the name/meaning of the institution as a means to an end, which is to encourage couples to obtain a license in the first place. Our marriage laws are there to shape culture and culture shapes conduct. Allowing infertile heterosexuals does not attempt to take away the law's ability to recruit and influence the culture of heterosexuals who are "fertile" to make sure they create and/or raise their offspring's in a stable environment. Moreover, the state cannot promote responsible procreation and rearing of children without referencing and acknowledging the traditional definition of marriage because it's the only union that can procreate and fulfill this particular state's objective; unlike same sex couples who cannot by definition procreate. Therefore, infertile heterosexuals do not change the definition nor challenge the intention of the institution of marriage. This is because the definition of marriage (the means) and the purpose of it (the ends) are synonymous. Moreover, since same sex couples are not similarly situated, an important governmental distinction between the two relationships would be reasonable in order to continue advancing the state's interest in encouraging responsible procreation and rearing of children to each generation while the state can encourage homosexuals to adopt and stay together with civil unions. JUSTICE is applied EQUALLY in each case. 3."Explain why 'seperate but equal' is a valid concept of human rights." We have separate but equal situations for men and women that permeate our country ranging from restrooms, the military, prisons, sport teams, and even separate but equal public schools. We have this even though women are a minority that historically have been discriminated against. For example, in a case called Vorcheimer v. Philadelphia school District, the Supreme Court ruled, that "Separate" is essentially "Equal". As long as each gender equally has a choice in going to both schools for both genders and that, interests in creating separateness based on the biological differences grounded in sex and GENDER are a legitimate state interests. Just like with marriage in this situation. In United States v. Virginia , the court agreed with this rationale as well: "Had Virginia made a genuine effort to devote comparable public resources to a facility for women, and followed through on such a plan, it might well have avoided an equal protection violation."[2]"it is not the 'exclusion of women' that violates the Equal Protection Clause, but the maintenance of an all-men school without providing any -- much less a comparable -- institution for women... It would be a sufficient remedy, I think, if the two institutions offered the same quality of education and were of the same overall caliber." Obviously, this is all because there is a fundamental difference between race and sex. This is why we no longer have bans on interracial marriage or have Jim Crow laws but still have and always accepted separate facilities for the sexes and define marriage between one man and one woman. Therefore, there is no reason to think that gay unions will also be viewed or treated inferior in practice or in principle, especially when the term "civil unions" by itself is simply a neutral term without meaning not a negative one. Unless PRO can show that all or majority of the states that have civil unions for same sex couples were unable to provide the same rights and have failed to enforce their civil union laws, separate but equal is a valid compromise.