A Logical Analysis of the Constitutionality of Homosexual Marriage

With the 2012 election season fast approaching the constitutionality of homosexual marriage is once again crawling from the back burner of the public mindset to the front burner. Sadly all of the effort that both the pro-homosexual marriage and anti-homosexual marriage camps place in waging these legal battles has resulted in a complicated draw. On its face this ambiguity perpetrated by the courts is understandable, but when looking deeper at the motivations driving this issue, the answer becomes clearer.

To understand the answer to this issue and how it comes about it is important to investigate the current pertinent rulings on the legal standing of homosexual marriage at the federal level. Currently there are three important cases to review: Baker v. Nelson (1972), Citizens for Equal Protection v. Bruning (2005-2006) and Perry v. Schwarzenegger (2010-2012). Examination of these cases should provide the necessary information to how both the pro and anti-sides look at the question of homosexual marriage.

Baker v. Nelson originated in Minnesota when the Hennepin County District Court Clerk, Gerald Nelson, denied Richard Baker a marriage license. The denial was based on no direct application of law, but on the personal belief of Gerald Nelson that marriage was between a man and a woman; Minnesota had no explicit legal precedence or law demanding that marriage was between a man or a woman or that same sex couple were not legally able to marry at the time. Baker sued for a license on 1st, 8th, 9th and 14th Amendment grounds. After a state trial court dismissed Baker’s lawsuit, the State Supreme Court in Minnesota actually addressed the grievance.

The court first ruled that for a statutory interpretation of marriage it was appropriate to regard marriage as a coupling between a man and a woman based on common ‘understanding’ of the term “marriage” and contextual gender-specific references elsewhere in state law. However, the chief argument for this definition rested on the basis that heterosexual couples were capable of procreation and offered a more preferential child-rearing environment. This breeding distinction between heterosexual and homosexual couples allowed the court to avoid comparisons to Loving v. Virginia (which overturned a Virginia law banning inter-racial marriages) on 14th Amendment grounds. Basically because interracial couples would still consist of a male and a female it would be wrong to deny their ability to marry when the only difference between them and same-race couples is different race not child-rearing capacity; for homosexuals the child-rearing differences were still prevalent.

The court dismissed the 9th Amendment argument because while they agreed that there was similarity between this case and Griswold v. Connecticut (which overturned the criminalization of contraceptive use based on a recognition of marital privacy) despite this similarity with regards to marital privacy because marriage was between a man and woman that no such privacy applied to homosexual couples. Basically a couple actually had to be married before receiving any protection under Griswold v. Connecticut, which makes sense based on the scope of that case. Both the 1st and 8th Amendment challenges were dismissed without comment, which is not surprising because the challenges made on Freedom of Speech and Cruel and Unusual Punishment grounds were rather weak.

The appeal to the U.S. Supreme Court resulted in a summary dismissal due to the conclusion that the appeal was dismissed due to want of a substantial federal question; due to the fact that the appeal was as a result of a mandatory appellate review not through certiorari the decision by the Minnesota Supreme Court became binding precedent with regards to the issue of homosexual marriage at the given time. Basically homosexual couples could not challenge any denial of their marriage potential under the Due Process Clause of the 14th Amendment, the Equal Protection Clause of the 14th Amendment or privacy rights stemming from the 9th Amendment. However, the ruling in Baker v. Nelson did leave an opening for homosexual couples to seek redress from non-Minnesota state constitutions.

One current concern with Baker v. Nelson that has not really been addressed in four decades; since its decision how the general understanding of the common use of the term “marriage” may have changed. The Minnesota Appellate Court, which decided the bulk of Baker v. Nelson, did so while relying heavily on common understanding and interpretation when defining what a marriage was. In 2012 it would be more difficult to argue to the general public that marriage was solely the domain between a man and a woman. Thus, one could argue that relying on Baker v. Nelson as precedence for cases pertaining to homosexual marriage may no longer appropriate.

Citizens for Equal Protection v. Bruning was a two-pronged case where in U.S. District Court Judge Joseph Bataillon ruled that Nebraska’s Initiative Measure 416 violated the Equal Protection Clause of the 14th Amendment, the 1st Amendment and was a bill of attainder in violation of the Contract Clause of Article I of the U.S. Constitution. This decision was appealed to the Eight Circuit Court of Appeals and Judge Bataillon’s decision in all three parts was overturned. In their ruling overturning Judge Bataillon, the Eight Circuit relied significantly on the same type of rationality used in Baker v. Nelson.

According to Judge Bataillon the 1st Amendment violation of Measure 416 was viewed as sua sponte resulting in a diminished capacity of homosexual individuals to participate in the political system burdening their free speech rights. This excess burden could be classified as a violation of free speech similar to those who argue that campaign financial reforms and limits would cap/violate the free speech opportunities for wealthy campaign donors. Romer v. Evans was cited for the Equal Protection Clause violation concluding that the measure had ‘no rational relationship to any legitimate state interest.’

This lack of a rational relationship stems from the rational basis review pertaining to the due process clause of the 14th Amendment. The interesting issue with the rational basis review is that the enacting body (legislature) simply needs a meaningful reason for enacting the law to meet this requirement; the reason does not need to be intelligent or even right it just cannot be self-serving or crazy. Based on this distinction Judge Bataillon found that there was no underlying reason for the state to ban homosexuals from getting married beyond exercising the power to do it. In the precedence, Romer v. Evans, the Supreme Court ruled that Colorado’s attempt to exclude protecting homosexuals from discriminatory abuses, through the use of Amendment 2, had no legitimate state interests.

The bill of attainder violation was born of the lack of any alternative recognition from Measure 416 which not only precluded homosexuals from marriage, but all other government recognized legalities such as civil unions. Judge Bataillon concluded that without these alternatives Measure 416 “amounts to punishment [by legislation] for it does not merely withhold the benefit of marriage; it operates to prohibit persons in a same-sex relationship from working to ever obtain governmental benefits or legal recognition”.

What supposed flaws did the Eighth Circuit find when they reversed the holding that Measure 416 was illegal? Addressing the question about violation of the Equal Protection Clause the court ruled that it was inappropriate to view Measure 416 with strict scrutiny instead of a rational basis review due to sexual orientation not being a suspect classification. This lack of classification for sexual orientation allowed the measure to create and/or validate the definition of a marriage as the union between one man and one woman. Using this classification for marriage, supporters of Measure 416 argued that because they believed that procreation was best in married heterosexual couples it was appropriate to offer legal recognition and a basket of rights and benefits to encourage the formation of these units. The Eighth Circuit agreed that based on this reasoning the State’s justification has a rational relationship to legitimate state interests (better environments to raise children), thus there was no violation of the Equal Protection Clause based upon the conclusions drawn from Romer v. Evans.

The Eighth Circuit ruled that the bill of attainder concept of punishment is not applicable to “every Act of Congress or the States that legislatively burdens some persons or groups, but not all other plausible individuals.” Using this definition, the bill of attainder rationality used by Judge Bataillon was rejected. The 1st Amendment issue was rejected in appeal because it was concluded that denying homosexuals the ability to marry did not burden the ability of homosexuals to participate in the political process in pursuit of a common goal or lead to the termination of associations due to the lack of a marriage conclusion.

The case of Perry v. Schwarzenegger (which was later renamed Perry v. Brown due to the election of new governor Jerry Brown in 2010) involved two separate same-sex couples in two different counties in California being denied marriage licenses due to Proposition 8, a 2008 California ballot initiative that amended the state constitution to remove the ability of homosexuals to marry, but retained the legal alternative of domestic partnership with all legal advantages and disadvantages; as a response to these rejections these individuals went to court. An information note: Proposition 8 was created by homosexual marriage opponents as a response to In re Marriage Cases which ruled that their interpretation of the California State Constitution allowed homosexuals to get married.

The California State Supreme Court ruled in Strauss v. Horton that Proposition 8 was lawful, but was not retroactive so those homosexual couples that married in the time between the In re Marriage Cases decisions and the passage of Proposition 8 were still valid. Unsatisfied with this decision, the plaintiffs filed a grievance in federal court. One interesting element to this case was that both Governor Schwarzenegger with his Attorney General along with Governor Brown with his Attorney General refused to participate as defendants in the case because of their beliefs that Proposition 8 was unconstitutional. The group responsible for sponsorship of Proposition 8, ProtectMarriage.com, was allowed to take the role of the defense in the case.

The plaintiffs argued that Proposition 8 was unconstitutional on 3 points: 1) marriage is a fundamental right; 2) depriving homosexuals the right to marry hurts them and their children; 3) there is no reason nor any societal benefits which occur from denying homosexuals the ability to marry. The principle argument for the defense was the past precedence had defined marriage as between members of the oppose sex, thus denying same-sex couples the ability to marry is appropriate along with the procreation arguments made in past cases (notably Baker v. Nelson and Citizens for Equal Protection v. Bruning). Immediately there is open question to whether or not the second point of contention from the plaintiffs has anything to do with the constitutionality of a given law.

Sadly most of the hearing for this decision revolved around numerous irrelevant topics such as the historical influence of negative attitudes towards homosexuality, the economics of homosexuality and the effort applied and tactics that were utilized to pass Proposition 8. None of these elements were relevant to the question of whether or not banning homosexual marriage violated the Equal Protection Clause of the Constitution or whether or not marriage is a fundamental right. The only useful part of the hearing involved questions about the similarities and differences in child-rearing ability between homosexual parents and heterosexual parents, which went towards the question of rational basis.

A number of experts testified on the behalf of the plaintiffs with scant rebuttal from the defense. These experts concluded that the quality and stability of same-sex relationships are similar to heterosexual relationships and that child adjustment to these relationships is healthy and similar, but could be improved further if these homosexual partnerships were allowed to officially marry. Note that in this situation adjustment pertains to a child who has no significant behavioral or psychological problems, is able to interact effectively and smoothly with adults and children and perform well and achieves appropriately at school. Then when this individual becomes an adult he/she would be able to form successful intimate relationships with other individuals as well as perform effectively in general society.

Oddly enough those two central points made by the plaintiff experts appear to contradict. If there is no significant difference in child adjustment between heterosexual and homosexual couples then how can allowing homosexuals to marry improve that level of adjustment? Such a statement implies that homosexual couples do a better job of raising children than heterosexual couples because heterosexual couples have the benefits of marriage, which according to these experts provides positive aid to producing well-adjusted children; however the contention that homosexuals do a better job raising children is highly improbable because heterosexual couples have higher effectiveness ceilings than homosexual couples. Therefore, either homosexual couples do not raise children that are as well-adjusted as heterosexual couples or marriage has no significant influence on children adjustment. Interestingly it does not appear that this contradiction was pointed out during the hearing.

On August 4, 2010 Judge Walker ruled in favor of the plaintiffs overturning Proposition 8 stating that it violated the Due Process and Equal Protection Clauses of the 14th Amendment due to the belief that California had no rational basis or vested interest in denying homosexuals the ability to marry. This ruling was driven by Judge Walker’s belief that Proposition 8 was supported only by those who relied on conjecture, speculation and fear regarding homosexuals and/or the homosexual lifestyle. He also cited Loving v. Virginia, Griswold v. Connecticut, Lawrence v. Texas and Turner v. Safley as precedence regarding the ‘right to marry’ further adding that “race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage.” Overall it is troubling that Judge Walker cited Loving v. Virginia without making a reply to Hernandez v. Robles. Also citing Griswold v. Connecticut was inappropriate done primarily for emotional emphasis; instead if Judge Walker thought in this manner it probably would have been better to cite Eisenstadt v. Baird.

The issue of strict scrutiny or rational basis was addressed through Judge Walker’s belief that California’s existing domestic partnership laws failed to provide to live up to the ‘right to marry’ on two counts: 1) domestic partnerships are viewed differently from marriages in a social context; 2) the creation of the domestic partnership was implicitly designed as an alternative to marriage so that homosexual couples could not marry. However, there were some tone problems with Judge Walker’s opinion as he focused his decision largely on the environment surrounding the passage of Proposition 8, general attitudes towards homosexuals and elected not to address Baker v. Nelson or Citizens for Equal Protection v. Bruning at all. Reading the opinion one leans towards the mindset that Judge Walker wanted to rule Proposition 8 unconstitutional before the hearing even began and fit the evidence to that desire.

Proponents of Proposition 8 appealed to the Ninth Circuit Court of Appeals and on February 7, 2012 a Ninth Circuit panel of three justices ruled 2-1 (along what some would argue as ‘party lines’) in favor of the plaintiffs upholding Judge Walker’s ruling. It must be noted that the claim by the majority that there is a difference between stripping a group of a certain ‘right’ versus withholding the ‘right’ in the first place is illogical. Either homosexuals have the right to marry or they don’t; if they do then withholding that right is just as bad as stripping them of it because both situations deny them that right. The insistence of the majority to continually mention that Proposition 8 stripped over withholding is peculiar as it leads one to conclude that the majority believes that once a right is given it somehow supercedes the constitutionality of that right. Basically if a right is given it becomes de facto constitutional even if it is not.

For the bulk of their ruling the majority leaned heavily on Romer v. Evans in that they equated Amendment 2 and Proposition 8 as sufficiently identical in intent. However, the majority made a somewhat cop-out claim in that they purposed avoid addressing the question of marriage as a right to avoid the summary judgment rendered in Baker v. Nelson which would have upheld the Constitutionality of Proposition 8. The inherent problem with this strategy is if it is indeed allowable to ban homosexuals from getting married then the question that the majority answers “whether California had any more legitimate justification for withdrawing from gays and lesbians its constitutional protection with respect to the official designation of ‘marriage’…” is immediately irrelevant because homosexuals do not have that constitutional protection in the first place, yet the majority consistently proclaims that Proposition 8 eliminated a right for one particular group (in this case homosexuals); such contention is somewhat contradictory.

It is also somewhat troubling that the majority appeared to miss the entire point, that being psychological and societal, when considering whether the standing of marriage was an effective driver to promote heterosexual marriage, yet the same majority place significant psychological and societal emphasis on marriage as it pertains to homosexuals getting married vs. having domesticated partnerships; this apparent contradictory and hypocritical behavior by the majority should be unsettling to everyone regardless of one’s personal opinions about homosexual marriage.

Eventually the majority opinion of the Ninth Circuit concluded that all parties agreed that Proposition 8 had one purpose: strip same-sex couples of the ability to obtain and use the designation of marriage to describe their relationships. Due to this sole element the court concluded that Proposition 8 had no ability to enhance California’s interests in child-rearing or responsible procreation, for it had no influence on the right of same-sex couples to raise children or on the procreative practices of other couples, thus it violated rational basis test established in Romer v. Evans and therefore was unconstitutional.

In the minority opinion Judge Smith first addressed whether or not the Ninth Circuit was allowed to act on the question of homosexual marriage until the U.S. Supreme Court instructs them that they can as dictated by Baker v. Nelson. Based on the circumstances of Proposition 8 (removing the title of marriage from homosexual unions as domestic partnerships still offered all of the legal benefits of marriage) he ruled the breadth of Baker v. Nelson did not encompass Perry v. Brown.

Judge Smith then outlined that in Romer v. Evans the Supreme Court held that Amendment 2 failed its rational basis review for two reasons: 1) The amendment had the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and invalid form of legislation; 2) Its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything, but animus towards the class it affects; it lacks a rational relationship to legitimate state interests.

Per Romer v. Evans Judge Smith concluded that strict scrutiny was not required when considering questions of constitutionality for marriage, but a rational basis must exist. In this vein Judge Smith cites the fact that while Lawrence v. Texas overturned criminalization of homosexual behavior, it also concluded that the fundamental right of marriage does not necessarily apply to homosexuals. In contrast to the majority opinion Judge Smith concludes that Romer v. Evans does not directly apply to Perry v. Brown because Proposition 8 does not eliminate the ability to homosexuals to choose their own life partners nor invalidates any legal advantages and disadvantages that come from those selections, thus it lives up to the equal protection principles outlined in the California Constitution. Basically Romer v. Evans involved stripping homosexuals of protections whereas Perry v. Brown involves (from the perspective of Judge Smith) stripping homosexuals of a certain title along a very narrow breadth of application. One could argue that while the majority may have placed too much emphasis on the meaning of the word “marriage” in society, Judge Smith place too little emphasis. The ironic thing is that both supporters and detractors of homosexual marriage need to justify marriage as special in society to support their positions.

Similar to Citizens for Equal Protection v. Bruning Judge Smith also argues that there is a valid purpose (rational basis) in reserving marriage to only heterosexual couples due to the exclusive procreational characteristics of heterosexual relationships, marriage should be reserved for heterosexuals because they offer the optimal parenting situation. Proponents of Proposition 8 believe that this satisfies rational basis because the standard only requires a basis on ‘rational speculation’ and opponents of Proposition 8 have not demonstrated that the optimization element of the speculation is not appropriate due to a lack of peer review research in that area. Remember that the argument in this situation is not satisfactory or well-adjusted environment for child-rearing, but optimal.

Unfortunately it could be argued that Eighth Circuit in Citizens for Equal Protection v. Bruning and Judge Smith take an incomplete view with regards to the context of ‘marriage’ in the above environment. There are two immediate points of contention: first, who actually is recognizing 1 male and 1 female as the ‘best situation for raising children’? Social science has determined on numerous occasions that there is no statistically significant difference, within certain boundary conditions, between heterosexual and homosexual couples with regards to interpersonal relationships or raising children. Thus the ‘best situation’ argument from an empirical standpoint is not an agreed upon fact, but opinion, especially because it paints all heterosexual couples as superior to all homosexual couples. Building on this type of precedence would it be fair to say that because it is person A’s opinion that black people as a population are stupider than Asians (despite having no incontrovertible empirical evidence to that position) black people should not be allowed to pursue occupations in education or science because less Asians may decide to go into these fields because blacks are allowed to?

Second, this issue of offering ‘incentives’ for heterosexual couples to marry is only valid if there is a quota of sorts on the number of individuals that can get married or the benefits that come with marriage. The fact that there are no such quotas then the advantage of ‘steering heterosexual procreation into marriage’ is not obstructed by allowing homosexual individuals to get married as well. Without quotas the only way this argument works is if one believes that there is some form of intangible element to marriage, which drives heterosexual couples to marry and allowing homosexuals to marry destroys this element resulting in a significant drop in heterosexual marriages. However, in addition to not being very logical (the idea that heterosexual couples marry because it is some ‘exclusive’ club) there is no legitimate evidence supporting such an idea in reality.

The spirit of the sanctity argument is also seriously damaged by ease in which states allow heterosexual couples to divorce. If the development of heterosexual married couples were so important to the state, then the state should take the position that initiating a marriage should be more difficult to at the present. If entrance and exit from marriage remains as easy as it is currently, then it could argued that it is in the state’s interest to initiate marriage, but not maintain them. This reality undermines a significant portion of the argument for banning homosexual marriage in the name of state interests because creating heterosexual married couples is advantageous in raise families, an advantage that is lost if the marriages do not remain intact.

While heterosexual parenting have not been demonstrated empirically to be superior/optimal versus homosexual parenting theoretically it is unarguable that a child having a quality mother and father is superior to having two quality parents of the same sex. This theoretical basis could provide supporters of banning homosexual marriage the rational basis due to a debatable issue they require to ban homosexual marriage.

The reason heterosexual parenting can be thought of as superior theoretically is that there are certain perspectives that each sex has with regards to the world as well as interpersonal relationships. For a child with same sex parents one of these distinctly different viewpoints is not available; this reality is especially relevant when dealing with opposite sexes (in that there are certain things that two homosexual males cannot teach their female child that a mother could teach).

Proponents of same sex marriage cannot reasonably invoke a “Plessy v. Ferguson” mindset where while the parenting may be separate (different) it is also similar enough to be equal because like the Warren Court ruled when overturning Plessy v. Ferguson it clearly is not. However, lacking that particular sex-based viewpoint does not mean that a child with same sex parents is significantly handicapped. Think of it like extra credit being applied to test scores; the quality homosexual parents can raise a child to score a 100%, but quality heterosexual parents can raise a child to score greater than 100% where the percentage relates to available psychological understanding of people and the world and 100% is the well-adjusted average understanding.

Therefore, proponents of homosexual marriage must focus on well-adjusted over optimal child-rearing utilizing the rationality that the potential is not enough to warrant it as a reason. If the ability to marry was closely regulated so that only those who had a realistic opportunity to fulfill the above outlined ceiling were allowed to marry then this rational could be utilized; however, that is not the case as almost no scrutiny is involved in the preparation for marriage, thus the optimal argument should lose its significance.

As previously discussed the procreative non-optimal argument appears to rely on the psychological and ‘sacred’ understanding of marriage functioning with the belief that the legal benefits that arise from marriage are not attractive enough to drive heterosexual couples from co-habitation relationships to marriage. The rationality to why proponents believe heterosexual couples need to be in marriages over simple co-habitation has not routinely been disclosed. One could argue that the specific nature of marriage facilitates a greater feeling of responsibility both between the participants and any progeny reducing the probability that the relationship dissolves in times of stress. If one eliminates the ‘special’ place that marriage has, then this stabilizing benefit is lost.

To counter that portion of argument the plaintiffs argued that Proposition 8 could only enhance the probability of heterosexual marriage if there are heterosexual couples who would refrain from marriage solely due to homosexual couples have access to marriage as well. Therefore, Proposition 8 is driven by private bias and its passage legitimized those biases, thus it should not be constitutional. The problem with this argument is that the Supreme Court ruled in Palmore v. Sidoti that private biases cannot be given effects, whether directly or indirectly, through the law, thus from a standpoint of the law this argument holds no legal standing.

As alluded to earlier, part of the problem in both Judge Walker’s ruling and the majority opinion of the Ninth Circuit didn’t actually address Citizens for Equal Protection v. Bruning. The situations in California and Nebraska are almost identical in general purposes; thus for California to legally view banning homosexual marriage as a violation of equal rights (recall that despite the linguistic gymnastics that both Walker and the majority Ninth Circuit utilize that is exactly what they are ruling), without addressing Bruning (which states that in Nebraska it is not a violation of equal rights to ban homosexual marriage) is like saying in California 2 + 2 = 3 and in Nebraska 2 + 2 = 5. Basically courts are saying that there are two answers to a question that can have only one right answer regardless of where or what way the question is asked.

That sentiment embodies the biggest frustration that comes from a number of these court rulings on homosexual marriage, the issue of fragmentation. Each court seems to attempt to compartmentalize their issue with respects to homosexual marriage so one develops a number of very specific rulings instead of one broad governing one, largely due to ego possibly due to the Baker v. Nelson restriction. It is akin to a court saying “well court A ruled on interactions associated with the number 5, but because the number of relevance here is 4.999999999 we can rule a different way if we choose.” While 4.999999999 is technically a different number than 5 for all practical purposes 4.99999999 is the same as 5.

Also a continuing problem with the general argument made by homosexuals is that there is over-exaggeration from the emotional perspective. It is as if proponents of homosexual marriage feel it necessary to lament about injustices perpetrated against homosexuals in the past. Unfortunately this lamentation does nothing to positively advance the argument of the constitutionality of homosexual marriage. Constitutionality is not influenced on whether or not something makes one feel good or bad, if it did the 1st Amendment’s protection of speech would have long been rendered pointless.

Another side issue is the issue of ‘burden of proof’ with regards to the central tenet of parenting between homosexuals and heterosexuals. It is odd that the pro-homosexual side has allowed themselves to drawn in to playing by the anti-homosexual side’s rules. In standard court the burden of proof is on the prosecution to demonstrate that the defendant is guilty of the charged crime because the prosecution is attempting to change the status quo with regards to the defendant. Therefore, if individuals are attempting to ban homosexual marriage and use lesser/lacking parenting as a rationality to justify the ban, the burden of proof falls to these banning individuals; these individuals have to prove that children raised by homosexuals on average are disadvantaged over those children raised by heterosexuals, pro-homosexual groups do not have to prove that there is no severe disadvantage. Yet despite this logic, it frequently appears that pro-homosexual groups are the ones that have accepted the burden of proof, possibly because of the negative characteristics that have been routinely associated with homosexuality.

The sad thing is that the debate about homosexual marriage has almost devolved from a discussion about civil rights to a debate about the meaning of a word. The meaning behind the word ‘marriage’ has become so exalted by some heterosexuals that it has become discriminatory in its application and seemingly made it even more desirable to homosexuals. This situation is similar in some ways to the relationship that the black population have with the word ‘nigger’.

The black population has co-opted the use of the word exclusively for themselves based on historical precedence of its application with the functioning premise that they understand the implications of the word and ‘respect’ its use. This mindset has left others outside this group to frequently use terms like ‘the n word’ or meaningless substitutes like ‘ninja’. However, this rationality is clearly flawed for this exclusivity has not buried the word, but instead resulted in its causal use by blacks diminishing its significance in society. While all in the black populace do not use it in casual conversation any condemnation of its use is held in so little esteem that it is ignored, at least it is until another race, especially whites, attempts to use it in either serious or causal discussion. The use of nigger by these individuals results in a racially driven backlash by the black population usually resulting in the accusation of a baseless racism charge; baseless because the disrespect that the black population has shown to the ‘power’ of the word nigger has stripped it of its historical meaning and precludes its exclusivity of use.

Some heterosexuals feel the same way about the word ‘marriage’. Based on historical precedence they have deemed the word and its meaning exclusive to their group. However, with a divorce rate hovering around 50% in the United States a number of heterosexuals have not taken the time to appreciate the meaning of marriage, thus not showing it proper respect. Yet, when an outside group professes a desire to utilize the term for itself while also planning to show it proper respect there is a negative backlash largely relying on citation of the ‘sacredness’ of the institution and how these outside parties will not have appropriate reverence for marriage forgetting the numerous violations of that reverence within their own group.

An interesting side question to the context of discrimination itself is why some believe it is imperative to demonstrate that homosexuality is genetically based and uncontrollable? Individuals are not born with predisposed religious beliefs, but instead select them; yet despite the fact that they select their religious beliefs those beliefs are protected under anti-discriminatory laws. Therefore, even if homosexuality were a choice instead of derived genetically it should not make any difference with regards to its classification as a distinct demographic social group.

Another aspect of the homosexual marriage question that has not been addressed routinely in the courts is whether or not such a ban violates the 1st Amendment on the grounds of separation of church and state. The principle reason that most individuals, if not all individuals, oppose homosexual marriage is that they believe in the sanctity of marriage, which is born from their religious beliefs. While utilizing religious beliefs to guide one’s own life is appropriate, the Constitution disallows the use of religious beliefs as the principle agent in dictating laws in public policy; therefore, based on the motivational origins behind attempts to ban homosexual marriage it could be argued that any attempt to ban homosexual marriage should be disallowed as a violation of the separation of church and state clause of the 1st Amendment.

Overall despite the somewhat clumsiness and evasiveness of the courts making pro-homosexual marriage decisions, opponents of homosexual marriage have not presented any legitimate legal reason to prevent homosexuals from pursuing marriage. Of their two major arguments that have merit, procreation efficiency is in part eliminated due to the lack of a quota on marriage, which only leaves the bias crutch that heterosexual couples need to reject homosexual couples ‘invading’ marriage to significantly increases their own desire to marry. The reliance on bias strips the procreation efficiency argument of its independence, thus forcing adherence to the parenting optimization argument.

Unfortunately for homosexual marriage opponents and somewhat ironically the very actors who grant the optimization argument its legitimacy also eliminate it as a valid legal point of argument for the procreation argument. The heterosexual couples that could provide a better child rearing environment over any homosexual couple does not rely on bias to drive them into marriage; those couples are driven into marriage exclusively by love, both for each other and for their children. Therefore, with homosexual couples statistically matching heterosexual couples in child rearing from a well-adjusted standpoint the procreation efficiency argument falls. The optimization argument fails due to the lack of differentiation (there are too few heterosexual couples that could out-perform all homosexual couples). Thus, it appears that any attempt to continue to ban homosexual marriage using current reasoning is a violation of Romer v. Evans, is a waste of time and perpetuates a pseudo-debate that society does not need.