Thoughts in a Haystack

A Federal Colorado District Court judge, C. Scott Crabtree, has joined the chorus of courts that have found that same sex marriage bans are unconstitutional. The decision is here.

It is the usual fare. The judge reviewed the three levels of scrutiny under which the constitutionality of state statutes are judged, strict scrutiny, heightened scrutiny and rational basis. Judge Crabtree noted:

The avowed State interest can be distilled down to encouraging procreation and marital commitment for the benefit of the children. The problem with this post-hoc explanation is that it utterly ignores those who are permitted to marry without the ability or desire to procreate. It is merely a pretext for discriminating against same-sex marriages.

The judge noted that the legislative history of the state's statutory ban and the state constitutional ban did not show any serious intent to encourage procreation or marital commitment. Therefore:

The Court has previously found that the State's professed governmental interest was a mere pretext for discrimination against same-sex marriages created "post hoc in response to litigation." Thus, the Marriage Bans cannot even pass muster under the rational basis analysis. The sole basis for precluding same-sex marriage is self-evident—the parties are of the same sex and for that reason alone do not possess the same right to marry (or remain married) as opposite-sex couples. The Court holds that the Marriage Bans are unconstitutional because they violate plaintiffs' equal protection rights.

As someone who has, on occasion, had to argue in defense of the indefensible, I have a certain professional admiration for this argument by the state:

Government [indorsement of] marriage is meant to try to fight the instinct to create children without remaining committed to their upbringing into adulthood. This problem is not caused by same-sex couples, at least not to any significant extent, and the state thus need not extend this part of its solution to them.

Inasmuch as gays who are parents tend to remain committed to raising their children into adulthood, the state has no need to grant them the rights and privileges of marriage?

No doubt heads are exploding right now in Colorado Springs, home to many Religious Right organizations, such as Focus on the Family. If you live in the area, you might want to take an umbrella today.