Alabama v. Equality

The amicus brief of the governor of Alabama against same sex marriage is of the "make marriage small" variety:

Marriage equality does not exist in the United States. It cannot be made to exist in law without destroying the rights of children to be connected to their biological parents. ... Even those States that have extended legal recognition to same-sex couples continue to distinguish between marriage and same-sex “marriage.” The reason is plain: Marriage is a natural reality that States must distinguish from all other forms of human sociability, including same-sex relationships, for the purpose of securing the rights and well-being of children.

Toss in some religious discrimination -- flagging how certain Catholic institutions oppose taking part in foster care and the like if same sex families are involved while ignoring how the current inequality (which the state bluntly supports) clashes with the marriage beliefs of other religious groups. Do they matter?  These groups think "nature" defines "marriage" in a broader way, not just tied to certain people having sex and conceiving children.  They think marriage includes them and other people.

A 1885 case is cited for this idea of marriage -- "the integrity of the family is grounded on the monogamous union of a man and woman for life, the source of healthy children and the continuation of civilization."  It is unclear if modern divorce laws, which to me express a right as much as the right to get married in the first place, is a serious interference with "natural" marriage as well.  And, even in 1885, the ability to have children wasn't the only way one obtained a marriage license, plus "healthy children" and the "continuation of civilization" can be furthered by same sex marriage too.

So, especially today, there is no need to single out the "union of man and woman out of which arises the biological family" as the only couple that is given a marriage license.  The need to alter certain regulations touching upon marriage, such as paternity assumptions, very well might be needed to be altered as much as old fashioned assumptions involving the woman. BFD. "Marriage is the only institution capable of solving the problem of establishing normative connections between fathers and their children." Not clear, but again, that is not the only reason marriage is there for. Allowing that and other reasons for marriage licenses is and always was possible.

It is true that "moral" reasons are the only reason that rationally can be shown to block same sex marriages. However:

Our prior cases make two propositions abundantly clear. First, 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; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment.

The idea marriage is merely about procreative relationships is off:

The right to marry, like many other rights, is subject to substantial restrictions as a result of incarceration. Many important attributes of marriage remain, however, after taking into account the limitations imposed by prison life.  First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated. Finally, marital status often is a precondition to the receipt of government benefits (e.g., Social Security benefits), property rights (e.g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e.g., legitimation of children born out of wedlock). These incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by the fact of confinement or the pursuit of legitimate corrections goals.

The reasoning applies to same sex marriages generally as to marriages with prisoners -- these reasons apply, each and every one of them probably, to same sex couples.  Those married who are infertile and/or do so to protect adopted children (and other such families) are covered and this was a "traditional" type of thing marriage was there for.  Such people, including same sex couples, falls within an old case that noted "without a doubt" there is a fundamental liberty "to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience."  Not "procreate" children alone.  The "father" of our country had no children and still got married.  Ditto the "father" of the Constitution.

If this is the tenor of briefs for the states ...