• Anniston: You may not wear blue jeans down Noble Street.
  
• Children of incestuous couples are deemed legitimate.
  
• Hunting is not allowed on Sunday.
  
• It's illegal to play dominoes on Sunday.
  
• It is illegal for a driver to be blindfolded while operating a vehicle.
  
• It is illegal to stab yourself to gain someone's pity.
  
• It is illegal to wear a fake moustache that causes laughter in church.
  
• It's against the law for a man to seduce "a chaste woman by means of temptation, deception, arts, flattery or a promise of marriage."
  

You can make a case for government legislating about the kids being deemed legitimate and therefore have equal rights and for legislating against driving while blindfolded to protect public safety, but the rest seem to have no legitimate government purpose. The last item listed about seducing a chaste woman seems overly broad. One could argue that using deception and phony promises to obtain sex are acts of fraud, but the other means of persuasion do not involve infringing upon the rights of others.

Regarding Rational Basis Scrutiny, consider the following from Justice O'Conner's concurring opinion in Lawrence vs. Texas - "Under our rational basis standard of review, "legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." Cleburne v. Cleburne Living Center, supra, at 440; see also Department of Agriculture v. Moreno, 413 U. S. 528, 534 (1973); Romer v. Evans, 517 U. S. 620, 632-633 (1996); Nordlinger v. Hahn, 505 U. S. 1, 11-12 (1992)."

And -

"We have consistently held, however, that some objectives, such as "a bare ... desire to harm a politically unpopular group," are not legitimate state interests. Department of Agriculture v. Moreno, supra, at 534. See also Cleburne v. Cleburne Living Center, supra, at 446-447; Romer v. Evans, supra, at 632. When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause."

Consider the sound logic regarding the "Rational Basis" standard regarding same-sex marriage in this New York state ruling -

"(I)f, for argument's sake, we were to adopt the rational basis test as applicable here, that standard is not satisfied. What it comes down to, is this: is there a legitimate state interest in giving only certain individuals, i.e. opposite-sex couples, the right to enter into civil marriage, with all that institution's attendant benefits? Although the rational basis standard is far more deferential, requiring merely that the statute bear a rational relationship to any legitimate state interest, nevertheless, the statutes' implicit denial to homosexuals of the right to marry the individuals of their choice has no rational relationship to any legitimate state interest.

Defendant posits that, inasmuch as it is only heterosexual couples who procreate unintentionally, the State has a legitimate particularized interest in fostering marriage between heterosexual couples, in order to promote a stable environment for children born as the result of opposite-sex unions. But, the statute does not do this. Authorizing marriage only for opposite-sex couples does nothing to ensure that children born as the result of opposite-sex unions are raised in a stable family unit by both parents. [ Comment - Morality which allows pre-marital sex would not likely prevent one from having an abortion so the Defendant's assertion is highly specious. ] What the statute does is to merely make it possible for opposite-sex couples to enter into a civil marriage sanctioned by the State. This availability of the institution to opposite-sex couples neither encourages opposite-sex couples to choose to marry, nor encourages them to procreate only within marriage.

There would be greater logic in arguing that there is a governmental interest in giving preferred status to heterosexual couples, based upon a belief that society would rather have children born and raised within families created by opposite-sex couples. However, it is not surprising that defendant does not offer such a policy, since if it were expressed, such a preference to heterosexuals would be an acknowledgment of purposeful discrimination, contrary [*35]to the policies underlying such decisions as Matter of Jacob (86 NY2d 651 [1995]) and Braschi v Stahl Assoc. Co. (74 NY2d 201 [1989])."

Daniel Hernandez et al., Respondents,
V
Victor L. Robles, as City Clerk of the City of New York, Appellant.

The first paragraph cited above shows that bans on same-sex marriage don't even meet the most linient standard of scrutiny - "Rational Basis". This is because they don't "bear a rational relationship to any legitimate state interest. They will have a much harder time trying to be justified under the stricter standards of Heightened / Intermediate Scrutiny and Strict Scrutiny

Consider Justice O'Connor's concurring opinion in Lawrence vs. Texas , we know that when a law exhibits "a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause." In other words, a law that purposely discriminates i s subject to Heightened / Intermediate Scrutiny or Strict Scrutiny to justify its existence.

Heightened / Intermediate Scrutiny -

When the heightened scrutiny test is applied, the burden is on the proponent of the statute to show both the existence of an important governmental objective served by the statute, and the substantial relationship between the discriminatory effect of the statute and that objective (see United States v Virginia, 518 US at 533; People v Liberta, 64 NY2d at 168).

That same New York case cited above logically stated in this regard -

"We must therefore consider whether defendant has shown that the exclusion of same-sex couples from the marriage laws serves important governmental objectives and is substantially related to achievement of those objectives. (see Craig v. Boren, 429 U.S. 190 (1976); United States v Virginia, 518 US at 533; People v Liberta, 64 NY2d at 168). This heightened scrutiny standard is the one that ought to be employed in this instance, for two reasons. First, the discrimination caused by the challenged statutes here, on the basis of the parties' sexual orientation, properly falls within the broader category of gender discrimination (see Koppelman, Why Discrimination Against Lesbians and Gay Men is Sex Discrimination, 69 NYU L Rev 197 [1994])." To illustrate, a woman who seeks to marry another woman is denied that right because she is not a man. That the law equally denies both sexes the right to marry one of their own gender does not remove it from the category of gender discrimination, just as equally denying members of different races the right to marry someone of another race is still race discrimination (see Loving v Virginia, 388 US at 8)."

Secondly, even if classifying individuals on the basis of their sexual orientation were completely distinguishable from gender discrimination, the heightened scrutiny standard should nevertheless apply. Applying the framework laid out in United States v Carolene Products Co. (304 US at 152-153 n 4), as recognized by the Court of Appeals in Matter of Aliessa v Novello (96 NY2d at 431), homosexuals as a class fall well within the category of a "discrete and insular minorit[y]" which is being shut out of the political process. It cannot be seriously disputed that homosexuals have long been subjected to purposeful discrimination, and - particularly in view of the spate of "Defense of Marriage Acts" being enacted around the country - that the group has been unable to protect itself through the political process (see Note, Heightened Scrutiny Under the Equal Protection Clause: A Remedy to Discrimination Based on Sexual Orientation, 42 Drake L Rev 485, 500 [1993]; Note, An Argument for the Application of Equal Protection Heightened Scrutiny to Classifications Based on Homosexuality, 57 S Cal L Rev 797 [1984]). To the extent some of the amici who presented briefs to this Court cite Justice Scalia's remark in his dissenting opinion in Romer v. Evans, that homosexuals as a group "possess political power much greater than their numbers" (517 US at 646) and "have high disposable income" (id. at 645), I reject any implication that these purported facts establish the group's ability to protect itself from discrimination. Nor do the strides that have been made against discrimination establish that the group has been able to protect itself through the political process; they establish that in some quarters the existence of, and need to combat, such discrimination has been perceived. "

In other words, such bans involve gender discrimination and discrimination against a small and relatively powerless minority group and therefore must serve a substantial government purpose in order to justify this level of civil rights violations. This is the same logic and reasoning the Iowa Supreme Court used in their ruling legalizing same-sex marriage, Varnum v. Brien. Please read our thorough summary of the case. A shorter, "Cut To The Chase" summary of the Varnum v. Brien case can be read here.

That same New York case also stated -

"However, accepting for argument's sake the merit of encouraging heterosexual couples to have children in the context of marriage rather than outside of it, for the stability of the family and the benefit of the children, it remains unexplained how this proposed interest is advanced by excluding same-sex couples from marrying."

And -

"As to any asserted important objective in protecting the traditional institution of marriage, there is no reason to conclude that excluding same-sex couples from the institution is substantially related to any such governmental concern, since it is not apparent how allowing same-sex couples to marry will have any effect on the continued survival of the institution itself, or even its ongoing vitality among heterosexuals."

And -

"In Lawrence v Texas, while acknowledging the extent to which the anti-sodomy laws were shaped by religious beliefs and "profound and deep convictions accepted as ethical and moral principles," the Court explained that "[o]ur obligation is to define the liberty of all, not to mandate our own moral code" (539 US at 571, quoting Planned Parenthood of Southeastern Pa. v Casey, 505 US 833. 850 [1992])."

And -

"When the heightened scrutiny test is applied, the burden is on the proponent of the statute to show both the existence of an important governmental objective served by the statute, and the substantial relationship between the discriminatory effect of the statute and that objective (see United States v Virginia, 518 US at 533; People v Liberta, 64 NY2d at 168). We must therefore consider whether defendant has shown that the exclusion of same-sex couples from the marriage laws serves important governmental objectives and is substantially related to achievement of those objectives."

The bottom line issue is that "the burden is on the proponent of the statute to show both the existence of an important governmental objective served by the statute, and the substantial relationship between the discriminatory effect of the statute and that objective ." it does neither. The decision shows that such a ban does not promote heterosexual couples having kids in a stable environment, doesn't promote marriage amongst heterosexuals, and is unconstitution since the proponents of it seek to "mandate [their] own moral code" via gender discrimination and discrimination against a small and relatively powerless minority group.

The proponents of such bans will have a much harder time trying to justify them under the strictest standard of Strict Scrutiny .

Strict Scrutiny -

Federal case law uniformly holds the government regulation of the exercise of fundamental rights is unconstitutional unless the regulations both serve a compelling governmental interest and are narrowly tailored to serve that interest.

To satisfy strict scrutiny, the State must show that [a statute] "furthers a compelling state interest by the least restrictive means practically available. Bernal v. Fainter 467 U.S. 216, 227 (1984)

This Minnesota case explains it thusly - "Once a state interest is found to be sufficiently compelling, the regulation addressing that interest must be narrowly tailored to serve that interest. Eu, 489 U.S. at 222. As with the compelling interest determination, whether or not a regulation is narrowly tailored is evidenced by factors of relatedness between the regulation and the stated governmental interest. A narrowly tailored regulation is one that actually advances the state's interest (is necessary), does not sweep too broadly (is not overinclusive), does not leave significant influences bearing on the interest unregulated (is not underinclusive), and could be replaced by no other regulation that could advance the interest as well with less infringement.. "

Consider this from the recent (2008) California Supreme Court Ruling legalizing Same-Sex Marriage (subsequently overturned by the passing of Proposition 8 in the 11/08 national election) -

"(R)etaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children."

"Under the current statutes, the state has not revised the name of the official family relationship for all couples, but rather has drawn a distinction between the name for the official family relationship of opposite-sex couples (marriage) and that for same-sex couples (domestic partnership). One of the core elements of the right to establish an officially recognized family that is embodied in the California constitutional right to marry is a couple's right to have their family relationship accorded dignity and respect equal to that accorded other officially recognized families, and assigning a different designation for the family relationship of same-sex couples while reserving the historic designation of "marriage" exclusively for opposite-sex couples poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect. We therefore conclude that although the provisions of the current domestic partnership legislation afford same-sex couples most of the substantive elements embodied in the constitutional right to marry, the current California statutes nonetheless must be viewed as potentially impinging upon a same-sex couple's constitutional right to marry under the California Constitution.

Furthermore, the circumstance that the current California statutes assign a different name for the official family relationship of same-sex couples as contrasted with the name for the official family relationship of opposite-sex couples raises constitutional concerns not only under the state constitutional right to marry, but also under the state constitutional equal protection clause. In analyzing the validity of this differential treatment under the latter clause, we first must determine which standard of review should be applied to the statutory classification here at issue. Although in most instances the deferential "rational basis" standard of review is applicable in determining whether different treatment accorded by a statutory provision violates the state equal protection clause, a more exacting and rigorous standard of review - "strict scrutiny" - is applied when the distinction drawn by a statute rests upon a so-called "suspect classification" or impinges upon a fundamental right. As we shall explain, although we do not agree with the claim advanced by the parties challenging the validity of the current statutory scheme that the applicable statutes properly should be viewed as an instance of discrimination on the basis of the suspect characteristic of sex or gender and should be subjected to strict scrutiny on that ground, we conclude that strict scrutiny nonetheless is applicable here because (1) the statutes in question properly must be understood as classifying or discriminating on the basis of sexual orientation, a characteristic that we conclude represents - like gender, race, and religion - a constitutionally suspect basis upon which to impose differential treatment, and (2) the differential treatment at issue impinges upon a same-sex couple's fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple.

Under the strict scrutiny standard, unlike the rational basis standard, in order to demonstrate the constitutional validity of a challenged statutory classification the state must establish (1) that the state interest intended to be served by the differential treatment not only is a constitutionally legitimate interest, but is a compelling state interest, and (2) that the differential treatment not only is reasonably related to but is necessary to serve that compelling state interest. Applying this standard to the statutory classification here at issue, we conclude that the purpose underlying differential treatment of opposite-sex and same-sex couples embodied in California's current marriage statutes - the interest in retaining the traditional and well-established definition of marriage - cannot properly be viewed as a compelling state interest for purposes of the equal protection clause, or as necessary to serve such an interest.

A number of factors lead us to this conclusion. First, the exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples; permitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties that currently are imposed on married opposite-sex couples. Second, retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples. Third, because of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples. Finally, retaining the designation of marriage exclusively for opposite-sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise - now emphatically rejected by this state - that gay individuals and same-sex couples are in some respects "second-class citizens" who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples. Under these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest. Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional."

The logic couldn't be more clear.

Consider the following article commenting on the case -

High Court Unlikely to Settle 'Gay Marriage' Issue, Experts Say
By Pete Winn
CNSNews.com Senior Staff Writer
May 27, 2008

Brigham Young University law professor Lynn Wardle told Cybercast News Service that the homosexual marriage issue is unlikely to go directly before the nine justices of the High Court.

"The Supreme Court of the United States does not have the authority to reverse or review an interpretation of the California constitution - that is not the business of the U.S. Supreme Court," Wardle said.

"It is possible, if the decision of the California Supreme Court violated some provision of the U.S. Constitution, that the U.S. Supreme Court could take it up," he added. "For instance, if they had said, 'Black gay couples could get married, but not White gay couples.' Or if they said, 'Protestant lesbians can marry, but not Catholic lesbians.' That would clearly violate a provision of the U.S. Constitution, as the supreme law of the land."

But there is no provision in the U.S. Constitution that guarantees and protects marriage, Wardle pointed out.

"That is one reason why there is a movement to get a federal marriage amendment," he said. "Some people think there should be that kind of a provision to protect one of the basic institutions of society. And there are provisions like that in many national constitutions. But the U.S. Constitution doesn't have that kind of provision --at the time ours was written, it simply wasn't an issue."

Consider this from Lawrence vs. Texas -

"... Romer v. Evans, 517 U. S. 620 Romer invalidated an amendment to Colorado's constitution which named as a solitary class persons who were homosexuals, lesbians, or bisexual either by "orientation, conduct, practices or relationships," id., at 624 (internal quotation marks omitted), and deprived them of protection under state anti discrimination laws. We concluded that the provision was "born of animosity toward the class of persons affected" and further that it had no rational relation to a legitimate governmental purpose. Id., at 634."

Moral disapproval is therefore not a "legitimate governmental purpose" much less a "compelling state interest" and there fails at all levels of scrutiny.

The majority opinion in Lawrence vs. Texas also stated regarding a previous decision it was then overturning -

... (d) Bowers' rationale does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens concluded that (1) the fact a State's governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.

... It must be acknowledged, of course, that the Court in Bowers, was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. "Our obligation is to define the liberty of all, not to mandate our own moral code." Planned Parenthood of Southeastern Pa. v Casey. 505 US 833. 850 [1992]).

Justice Scalia, on the other hand, states -

... The Texas statute, it [the majority opinion] says, "furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," ante, at 18 (emphasis added). The Court embraces instead Justice Stevens' declaration in his Bowers dissent, that "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice," ante, at 17. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.

That's correct. As shown below, scripture condemns those who let "..their religious opinions prompt them to infringe upon the rights and liberties of others...". The righteous have no need to force their beliefs on others.

The majority opinion goes on -

... When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.

... Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

We clearly see that the majority opinion in Lawrence vs. Texas took the libertarian viewpoint that laws imposing subjective morality are unconstitutional. Without some "compelling state interest", such morality based laws do no meet any standards of scrutiny.

Justice O'Connor's concurring opinion states -

... And in Romer v. Evans, we disallowed a state statute that "impos[ed] a broad and undifferentiated disability on a single named group"--specifically, homosexuals. 517 U. S., at 632. The dissent apparently agrees that if these cases have stare decisis effect, Texas' sodomy law would not pass scrutiny under the Equal Protection Clause, regardless of the type of rational basis review that we apply. See post, at 17-18 (opinion of Scalia, J.).

... Texas argues, however, that the sodomy law does not discriminate against homosexual persons. Instead, the State maintains that the law discriminates only against homosexual conduct. While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas' sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class. "After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal." Id., at 641 (Scalia, J., dissenting) (internal quotation marks omitted).

Justice Scalia, in his dissenting opinion, counters -

... Finally, I turn to petitioners' equal-protection challenge, which no Member of the Court save Justice O'Connor, ante, at 1 (opinion concurring in judgment), embraces: On its face "21.06(a) applies equally to all persons. Men and women, heterosexuals and homosexuals, are all subject to its prohibition of deviate sexual intercourse with someone of the same sex. To be sure, "21.06 does distinguish between the sexes insofar as concerns the partner with whom the sexual acts are performed: men can violate the law only with other men, and women only with other women. But this cannot itself be a denial of equal protection, since it is precisely the same distinction regarding partner that is drawn in state laws prohibiting marriage with someone of the same sex while permitting marriage with someone of the opposite sex.

The same logic asserted by Texas (and Justice Scalia) applies to same-sex marriage. Laws against same-sex marriage allegedly don't discriminate against gays as a class, only their conduct, which is allowed to be done by straights. Gays as a class are truly facing discrimination.

Justice Scalia's opinion is also troubling since his logic echoes that of those who promoted laws against inter-racial marriage. They too said that since these laws applied equally to both Blacks and Whites (as Justice Scalia asserts regarding men and women above), that no discrimination is present and therefore no Equal Protection infringements exist.

Justice O'Connor's concurring opinion also states -

... The Equal Protection Clause " 'neither knows nor tolerates classes among citizens.' " Id., at 623 (quoting Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (Harlan, J. dissenting) ).

Consider this similar opinion from 60 years ago -

Justice Jackson - "The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected." Railway Express Agency, Inc. v. New York, 336 U. S. 106, 112-113 (1949) (concurring opinion).

Justice Jackson, and Justice O'Connor's concurring opinion in Lawrence vs. Texas, both state that laws denying equal rights to specific and politically weak and unpopular groups, without a "compelling state interest", are clearly unconstitutional and fail all levels of scrutiny.

Justice Scalia dissenting opinion states further -

... If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution," ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.

Exactly. Why are the elderly, the infertile, the sterile and the crippled allowed to marry if they can't have kids? How are they objectively different than same-sex couples and what "compelling state interest" or even "rational basis" is there in differentiating between the two?

If we "liken these rulings unto ourselves" (1 Ne. 19:23), it's obvious that bans on same-sex marriage are likewise unconstitutional since they don't meet any level of scrutiny nor promote any "compelling state interest" all while denying equal rights and denying Equal Protection to specific and politically weak and unpopular groups based only on the majorities subjective revulsion of those groups. I can't think of anything more legally specious and markedly un-American.

Consider two state rulings affirming strict scrutiny regarding same-sex marriage -

This Alaska state ruling declares that the right to choose one's life partner is a fundamental right and restrictions on it are subject to the strict scrutiny test applicable to fundamental rights-

"The court finds that marriage, i.e., the recognition of one's choice of a life partner, is a fundamental right. The state must therefore have a compelling interest that supports its decision to refuse to recognize the exercise of this fundamental right by those who choose same-sex partners rather than opposite-sex partners.

There is no dispute that the right to marry is recognized as fundamental. Today the court has recognized that the personal choice of a life partner is fundamental and that such a choice may include persons of the same sex. When the United States Supreme Court first characterized the right to marry as fundamental in Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), it linked the right to marry to the right to procreate, being faced, as it was, with a case involving the sterilization of prisoners. Similarly, in Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1977), the court was faced with a law that required a marriage applicant to prove he was up to date on his child support for children of his previous marriage before he could obtain a marriage license. The court focused on the decision to marry and have children as deserving of at least the protection allowed a woman in deciding whether to seek an abortion or to raise a child in illegitimacy:

Surely, a decision to marry and raise a child in a traditional family setting must receive equivalent protection. 434 U.S. at 385.

The court thus recognizes that procreation has been an important part of the U.S. Supreme Court's decisions that have found the right to marry fundamental. However, just as the "decision to marry and raise a child in a traditional family setting" is constitutionally protected as a fundamental right, so too should the decision to choose one's life partner and have a recognized nontraditional family be constitutionally protected. It is the decision itself that is fundamental, whether the decision results in a traditional choice or the nontraditional choice Brause and Dugan seek to have recognized. The same constitution protects both.

Thus, today's decision finds a person's choice of life partner to be a fundamental right. The consequence of this decision is that any limitations on this right are subject to the strict scrutiny standard established by the Alaska Supreme Court.

The court, having found the decision to choose one's life partner to be a fundamental right, has concluded that the strict scrutiny test applicable to fundamental rights applies to its review of the State's prohibition of same-sex marriages.

Were the right to choose one's life partner not fundamental, the court would need to determine whether the Code raised classification issues. Were this issue not moot, the court would find that the specific prohibition of same-sex marriage does implicate the Constitution's prohibition of classifications based on sex or gender, and the state would then be required to meet the intermediate level of scrutiny generally applied to such classifications. That this is a sex-based classification can readily be demonstrated: if twins, one male and one female, both wished to marry a woman and otherwise met all of the Code's requirements, only gender prevents the twin sister from marrying under the present law. Sex-based classification can hardly be more obvious. "

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT AT ANCHORAGE

JAY BRAUSE and GENE DUGAN,
Plaintiffs,
Vs
BUREAU OF VITAL STATISTICS,
ALASKA DEPARTMENT OF HEALTH
& SOCIAL SERVICES, and the
ALASKA COURT SYSTEM,
Defendants.

How can that logic be refuted?

Consider the sound logic of this Hawaii state ruling on a case seeking to overturn a law allowing same-sex marriage -

"18. Defendant has not demonstrated a basis for his claim of the existence of compelling state interests sufficient to justify withholding the legal status of marriage from Plaintiffs.

117. Defendant presented insufficient evidence and failed to establish or prove any adverse consequences to the public fisc resulting from same-sex marriage.
118. Defendant presented insufficient evidence and failed to establish or prove any adverse impacts to the State of Hawaii or its citizens resulting from the refusal of other jurisdictions to recognize Hawaii same-sex marriages or from application of the federal constitutional provision which requires other jurisdictions to give full faith and credit recognition to Hawaii same-sex marriages. [See Article IV, Section 1 of the U.S. Constitution (The Full Faith and Credit Clause).]

119. Defendant presented insufficient evidence and failed to establish or prove the legal significance of the institution of traditional marriage and the need to protect traditional marriage as a fundamental structure in society.

139. Simply put, Defendant has failed to establish or prove that the public interest in the well-being of children and families, or the optimal development of children will be adversely affected by same-sex marriage."

CIVIL CASE NO. 91-1394
STATE OF HAWAII
NINIA BAEHR, GENORA DANCEL,
TAMMY RODRIGUES, ANTOINETTE PREGIL,
PAT LAGON, AND JOSEPH MELILLO, Plaintiffs,
vs.
LAWRENCE H. MIIKE,
in his official capacity as Director of the
Department of Health, State of Hawaii, Defendant.

Both of these sound and logical decisions were overturned by voters who cared less about fundamental rights and strict or intermediate scrutiny than they did about using their religious opinions to justify infringing upon the rights and liberties of others.

The Faulty Logic of Same-Sex Marriage Opponents -

Please consider this New York Times article/commentary by a gay father on the recent New York and Washington opinions allowing same-sex marriage bans to continue -

"What the New York and Washington opinions share - besides a willful disregard for equal protection clauses in both state Constitutions - is a heartless lack of concern for the rights of the hundreds of thousands of children being raised by same-sex couples.

Even if gay couples who adopt are more stable, as New York found, don't their children need the security and protections that the court believes marriage affords children? And even if heterosexual sex is essential to the survival of the human race (a point I'm willing to concede), it's hard to see how preventing gay couples from marrying increases heterosexual activity. ("Keep breeding, heterosexuals," the Washington State Supreme Court in effect shouted, "To bed! To bed! To bed!")

A perverse cruelty characterizes both decisions. The courts ruled, essentially, that making my child's life less secure somehow makes the life of a child with straight parents more secure. Both courts found that making heterosexual couples stable requires keeping homosexual couples vulnerable. And the courts seemed to agree that heterosexuals can hardly be bothered to have children at all - or once they've had them, can hardly be bothered to care for them - unless marriage rights are reserved exclusively for heterosexuals."

In light of what the Hawaiian court said above does the logic of same-sex marriage opponents make sense? Can same-sex marriage opponents answer the following raised by the court?

• How are heterosexuals encouraged to marry by denying marriage to same-sex couples?
  
• How are heterosexual marriages strengthened by denying marriage to same-sex couples?
  
• How are heterosexuals encouraged to have kids by denying marriage to same-sex couples?
  
• How are heterosexuals encouraged to raise those kids in a stable and loving home by denying marriage to same-sex couples?

Also -

• How are the kids of heterosexuals protected by denying those same rights to kids of same-sex couples?
  
• Should a 75 year old LDS widow be allowed to marry a non-LDS man or should "death row" prisoners be allowed to marry if neither marriage serves no other purpose than to provide companionship, security, support, etc..??
  
• Why shouldn't the same apply to same-sex couples wanting marriage for the same reasons?
  
• What are the objective reasons that the former is allowed while the latter is banned?

Even the United States Supreme Court recognizes that companionship, security, support, etc... alone, without the possibility of child bearing, justify marriage -

"Many important attributes of marriage remain . . .after taking into account the limitations imposed by prison life . . . . [I]nmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship"
(Turner, 482 at 95-96).

In addition, the United States Supreme Court agreed with the Alaska ruling above that marriage is a fundamental right -

In Loving v Virginia,, 388 U.S. 1, 12 (1967), the Supreme Court struck down a state miscegenation law because it interfered with the constitutional right to marry -

"These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. 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.
"Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."

Even Elder Dallin H. Oaks of the Quorum of the Twelve Apostles and former Chief Justice of the Utah Supreme Court recognized the Church's hypocrisy in supporting bans on same-sex marriage -

"There is an irony inherent in the Church's taking a public position opposing homosexual marriages," wrote Elder Oaks. "... The leading United States Supreme Court authority for the proposition that marriage means a relationship between a man and a woman is Reynolds v. United States, 98 U.S. 145 (1878). In that case, in which the United States Supreme Court sustained the validity of the anti-polygamy laws, the Court defined marriage as a legal union between one man and one woman. The court's stress in that case was on one. The modern relevance of the Reynolds opinion is in its reference to marriage as being between a man and a woman. The irony would arise if the Church used as an argument for the illegality of homosexual marriages the precedent formerly used against the Church to establish the illegality of polygamous marriages"
(Dallin H. Oaks, "Principles to Govern Possible Public Statement on Legislation Affecting Rights of Homosexuals," 7 August 1984).

Liken this quote unto Civil Same-Sex Marriage -

"Although the boundaries of individual moral rights are complex and controversial, as we have seen, vague notions of public interest cannot be relied upon in a utilitarian sense to extinguish individual rights... While the majority of the community may find polygamous marriage relationships repugnant, repugnancy unassociated with entitlement claims cannot invalidate the rights of believers to practice polygamy.."
(Mormonism, Philosophical Liberalism, and the Constitution by R. Collin Mangrum, BYU Studies, vol. 27 (1987), Number 3 - Summer 1987 131.)

Though many dislike both institutions, there is no reason to ban them if there are no "entitlement claims" (i.e. claims of harm to rights to which one is entitled).

What Does The Gospel Say & What Should Devout LDS Do? -

What have the LDS prophets and apostles said about infringing upon the "basic civil rights of man"? Here are a few quotes -

There is a host of do-gooders, who constantly criticize our free choice system, ready to solve all human problems with legislation, willing to impose their version of the millennium on you and me, unwilling to rely on the judgment of the individual.
(Ezra Taft Benson, The Teachings of Ezra Taft Benson [Salt Lake City: Bookcraft, 1988], 628.)

You are free to choose exactly what you want to do, as long as it does not restrict or impose on the rights or liberties of others, but you must be responsible for your acts, and prepared to take the consequences.
(President N. Eldon Tanner, Conference Report, April 1970, General Priesthood Meeting 61.)

We have all been taught the doctrine of personal free agency and that no individual is ever compelled by force or other means to comply with divine edicts and philosophy.
(Joseph Fielding Smith, Answers to Gospel Questions, 5 vols. [Salt Lake City: Deseret Book Co., 1957-1966], 4: 69.)

...all men should be politically free and equal to vote as they please and to sustain what politics they please, so that they do not infringe on the rights of others.
(Wilford Woodruff, The Discourses of Wilford Woodruff, edited by G. Homer Durham [Salt Lake City: Bookcraft, 1969], 193.)

A man may act as his conscience dictates so long as he does not infringe upon the rights of others. That is the spirit of true democracy, and all government by the Priesthood should be actuated by that same high motive.
(President David O. McKay, Conference Report, October 1938, Afternoon Meeting 134.)

Freedom of thought, freedom of speech, freedom of action within boundaries that do not infringe upon the liberty of others are man's inherent right, granted him by his Creator - divine gifts "essential to human dignity and human happiness."
(President David O. McKay, Conference Report, October 1961, First Day-Morning Meeting 6.)
(President David O. McKay, Conference Report, October 1963, First Day-Morning Meeting 5.)
(President David O. McKay:, Conference Report, April 1964, Second Day-Morning Meeting 59.)

The home is the best place in the world to teach the highest ideal in the social and political life of man; namely, perfect liberty of action so long as you do not trespass upon the rights and privileges of another.
(President David O. McKay, Conference Report, October 1946, Morning Meeting 115.)
(President David O. McKay, Conference Report, April 1965, First Day-Morning Meeting 7.)
(President David O. McKay, Conference Report, October 1968, First Day-Morning Meeting 8.)

I have no right to any conduct which would impede the progress of my neighbor. I have no right to any act which would take the freedom from someone else.
(Elder Joseph F. Smith, Conference Report, October 1945, Afternoon Meeting 32.)

LDS apostle and scholar, Bruce R. McConkie, in his Doctrinal New Testament Commentary, gives us additional doctrinal support to oppose the banning of same-sex marriage. He discusses -

Matthew 22:15-22, Mark 12:13-17 and Luke 20:22-26. He states -

"How better could the Master Teacher proclaim his doctrine of separation of church and state than he did here in avoiding the trap of the Pharisees and Herodians?
These scheming and hypocritical "spies" offered Jesus these two alternatives as possible answers to their diabolically clever question: (1) Say, 'Yes, pay the hated poll tax to Rome as the law already requires,' which answer would cause the Pharisees to inflame the people against him. Or: (2) Say, as the sect of Zealots taught, 'No, Israel is a theocracy; God only is her King; pay no tribute to a foreign power,' in which event the Herodians would have delivered him "unto the power and authority of the governor," charging him with sedition and rebellion.
But from his lips instead came the decree: 'Render unto God and Caesar their own.' That is, in this present world where wicked men will not repent and come unto the fulness of the Lord's perfect order of government, there must be two separate powers - ecclesiastical and civil - the one supreme in spiritual matters, the other in temporal. Neither power can dictate to the other. And men are subject to them both."
(Bruce R. McConkie, Doctrinal New Testament Commentary, 3 vols.,[Salt Lake City: Bookcraft], 1:600,601.)

The civil and legal rights and benefits pertaining to marriage are clearly the domain of government (Caesar). We know that marriage has a legal/secular component because even clergy state that they perform marriages "by the power vested in me by the state of...I pronounce you husband and wife". We also know that people can't go to their clergyman to obtain a legal divorce. These aspects of marriage are clearly the domain of Caesar thereby refuting the idea that marriage is solely the domain of the church. Religious belief and doctrine have no right to infringe on the rights and liberties of others. D&C 134:4 confirms this.

Also, the 12th Article of Faith (the LDS's Summary of Beliefs) of the Church states -

"12. We believe in being subject to kings, presidents, rulers, and magistrates, in obeying, honoring, and sustaining the law."

LDS scripture D&C 134:4 states - "We believe that religion is instituted of God; and that men are amenable to him, and to him only, for the exercise of it, unless their religious opinions prompt them to infringe upon the rights and liberties of others..." (emphasis added). 1. Cor. 10:28-29 in the Bible likewise condemns people who limit the liberty of others. These verify that we are not to use our religious beliefs/opinions/sensitivities as an excuse to justify infringing upon the rights of others. Those doing so are in open rebellion to the scriptures and the historic teachings of the prophets. They are guilty of "steadying the ark".

The clear teaching of the Gospel is that, legally, we should be able to do as we please as long as we do not trespass on the person, property, or rights of others. The laws of the land state that the freedom to marry is a fundamental right not to be tampered with without a "compelling state interest" (which has yet to be shown). Impeding our rights and freedoms is contrary to the teachings of scripture and therefore contrary to God and the Church.