# 1st Circuit Court of Appeals: Defense of Marriage Act is Unconstitutional **URL:** \ **Category:** Great Debates\ **Created:** [May 31, 2012, 2:26pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653 "2012-05-31T14:26:03Z")\ **Posts on this page:** 20\ **Page:** 13
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 5, 2012, 3:52pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/241 "2012-06-05T15:52:24Z")
> [@rat\_avatar](#): > > This is #58 there is no cite here, Griswold v. Connecticut makes no mention of procreation when it gave the rights to purchase birth control to married persons. If this is so blindingly obvious why would the court be so forgetful. You have problems following instructions, don’t you? are you just being contrary any possible way? Just freaking read the thread already. #58 has no mention of Griswold. #97 lays out the relevant posts. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [June 5, 2012, 3:55pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/242 "2012-06-05T15:55:36Z")
> [@David42](#): > > Gays do not reproduce with each other. They reproduce with people OUTSIDE their marriages. So do infertile hetero couples (in fact, they started it), but there’s no argument I’m aware of that this has or should have any legal effect whatsoever on the status of marriage or the resulting child. As an incidental note, I speculated in another thread about a potential future president who, it’ll turn out, was conceived with the aid of fertility treatments and whether or not this would ignite partisan “natural born citizen” debates. I suppose _that_ thread will be a lively one. > [@](#): > > The fact that a few gays have utilized science or surrogates and the DNA of third persons does not make their reproduction fundamental to the survival of the nation. In short, take this out of the picture and the nation still survives. So? Take out professional football, and the nation still survives. This doesn’t form the basis of an argument to ban professional football. > [@](#): > > There is a reason marriage is a fundamental right, and gays are outside of that reasoning. Like I said, take it up with the Supreme Court if you do not like it. My Supreme Court already tackled the issue. Your Supreme Court will, sooner or later. But in any case, for whatever reason legal marriage was created in the U.S. in the first place, where in any current legal definition is fertility mentioned as a requirement? This doesn’t strike me as a particularly difficult or irrelevant question. ---
**Author:** ![rat\_avatar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rat_avatar/32/255_2.png) [@rat\_avatar](https://boards.straightdope.com/u/rat_avatar)\ **Post date:** [June 5, 2012, 4:02pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/243 "2012-06-05T16:02:53Z")
> [@David42](#): > > You have problems following instructions, don’t you? are you just being contrary any possible way? > > Just freaking read the thread already. #58 has no mention of Griswold. > > #97 lays out the relevant posts. No it lays out claims by you with no real evidence E.G. > [@David42](#): > > Please have a look again at your post #57, my response in #58, comment #61made by **waterj2** , and my comment #62. > > If you would answer #58 substantially differently than **waterj2** in comment #61 please say so. If not, please review _Skinner_ and _Loving_, and consider my comment #62, and explain how _Skinner_ (having nothing to do with marriage, but instead procreation) could possibly be a precedent for _Loving_ if the right to marriage **does not** flow from procreation as a matter of law. Did you even read either of these decisions From Loving > [@](#): > > Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival… To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. 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. The fact that it may result in children is why it is one of the “Basic civil rights of man,” but in no way to they claim it is a requirement or even a need of marriage. This is why it is useless to go back to your previous cites, I have read them and found them lacking in both case law and validity as arguments. Making it look like you are sending me to go view grand arguments you have already presented does nothing to move the debate forward. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 5, 2012, 4:04pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/244 "2012-06-05T16:04:52Z")
> [@rat\_avatar](#): > > Looking at Skinner you may have ignored the word ‘AND’. How do you read that and make the claim that the purpose of marriage was procreation? First of all, my claim is that the right to marriage flows from the right to procreate as a matter of law. To change that to the prupose of marriage is edging into strawman territory, please try to restrict yourself to what I do claim precisely. If you want, I’ll accept “pupose of marriage” as your way of saying the same thing, as long as you don’t later use it to move the goalposts like you tend to by bringing up ancient purposes of marriage. I am claiming a matter of law under the supreme court’s rulings, only. I hope you understand that. Now I would ask you to demonstrate, as Loving cites Skinner, what the citation to Skinner is for. The issues in Skinner is NOT marriage, it is procreation. Anything about marriage in Skinner is incidental dicta, not useful to actually deciding the question presented in Skinner. I would ask you in what way is marriage fundamental to the survival and existence of the human race, if we eliminate procreation? Is there any other possible way to logically say that marriage is fundamental, if we eliminate procreation from it? And do not forget that we have the right BECAUSE it is fundamental. ERGO, remove the fundamental aspect of marriage and no right to it devolves. Of course, I may have missed something, so please do show me what it is if so. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 5, 2012, 4:11pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/245 "2012-06-05T16:11:18Z")
> [@David42](#): > > And how do we enforce it? > > Dissolve their marriages? Do we have precedent that government can do that? > > Keep in mind we’re talking a fundamental right here. > > And if we are going to devise a scheme to dissolve marriages, what arbitrary time limit shall we set to dissolve it? > > How do we know that a childless couple might not have conceived the next day after dissolution? Who’s gonna decide? > > I don’t think that the supreme court requires violating other rights in order to make a law more narrowly tailored, does it? As in, we can more narrowly tailor this law by requiring medical tests, even though they are invasive of privacy? > Also of concern is how the public would accept such changes in how we deal with marriage. Furtherly declining marriage rates, I’d guess. I said we could ask them before issuing a certificate. We wouldn’t hold them to it, recognizing that other factors get in the way, but we could ask if their intention is to have children, and if not, refuse to issue the license. That would be more narrowly tailored than the current scheme, and we don’t do it. ---
**Author:** ![rat\_avatar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rat_avatar/32/255_2.png) [@rat\_avatar](https://boards.straightdope.com/u/rat_avatar)\ **Post date:** [June 5, 2012, 4:11pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/246 "2012-06-05T16:11:24Z")
> [@David42](#): > > First of all, my claim is that the right to marriage flows from the right to procreate as a matter of law. > > To change that to the prupose of marriage is edging into strawman territory, please try to restrict yourself to what I do claim precisely. If you want, I’ll accept “pupose of marriage” as your way of saying the same thing, as long as you don’t later use it to move the goalposts like you tend to by bringing up ancient purposes of marriage. > > I am claiming a matter of law under the supreme court’s rulings, only. I hope you understand that. > > Now I would ask you to demonstrate, as Loving cites Skinner, what the citation to Skinner is for. The issues in Skinner is NOT marriage, it is procreation. Anything about marriage in Skinner is incidental dicta, not useful to actually deciding the question presented in Skinner. > > I would ask you in what way is marriage fundamental to the survival and existence of the human race, if we eliminate procreation? Is there any other possible way to logically say that marriage is fundamental, if we eliminate procreation from it? And do not forget that we have the right BECAUSE it is fundamental. > > ERGO, remove the fundamental aspect of marriage and no right to it devolves. > > Of course, I may have missed something, so please do show me what it is if so. So you have two cases that do not prove your claim that marriage is “the right to marriage flows from the right to procreate as a matter of law” yet you refuse to provide that case law. I am not going to play your mental game in that last part, you are cherry picking and ignoring cases like Grizwold. Just provide cites that show that marriage was created as a civil institution, which is recent, due to procreation. I have provided documentation that as a civil institution it was more about inheritance and prevention of fraud, if what you claim is not true it should be trivial for you to provide documentation to falsify it. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 5, 2012, 4:28pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/247 "2012-06-05T16:28:29Z")
> [@rat avatar](#): > > Despite the claims in this thread, the church and the government keeping track of marriages was originally to prevent fraud in inheritance the child thing is a modern invention and mostly just rhetoric. > > They did not start making you have one in the church to prevent kids from marrying who they wanted vs. who their parents wanted them to marry in the 1600’s IIRC. > > Previous to that you could say I do alone by the hay bales and the church would accept it. I asked for a cite. > [@rat\_avatar](#): > > What part, the traditional “say it so and you are married” > > > [@](#): > > > > The Catholic church, in response to the Protestant challenge, took its stand in the Council of Trent and, in 1563, confirmed its previous doctrines. Indeed, it now demanded that all marriages take place before a priest and two witnesses. Among other things, this virtually eliminated not only secret marriages, but also the formerly common informal marriages. These, similar to the old Roman marriages by usus, were based simply on mutual consent without formal ceremony. In England they came to be called “common law marriages”, and since Henry VIII had broken with Rome, they continued to be permitted until 1753, when the Church of England was put in charge of all marriages (including those of Catholics, but excluding those of Quakers and Jews). This development did not affect the English colonies, however, and thus common law marriages remained possible in America. (As recently as 1970 they were still recognized in several states.) > > > [@](#): > > > > By late medieval church law, a contract of marriage was the speaking, by the prospective husband and wife, of the words of consent to the union (“I William take you Agnes as my wife”; “I Agnes take you William as my husband”), words that in themselves made the sacrament of marriage, regardless of where they were spoken or whether or not a priest was present. William’s contract was not a promise or a betrothal, but a binding, indissoluble union—or at least, it would have been, had William spoken the words freely and without coercion. In order to make certain that William could not repudiate the vows he had made, John Wellys ensured that they were spoken in the presence of a number of important men whom he had summoned expressly for that purpose. Neither block of text says anything in support of your claim. To this day, in fact, by Roman Catholic Canon Law, matrimony is a sacrament that the two partners confer upon each other, and the presence of a priest is simply as a witness – just as your last cite suggests. But that is a requirement of form, not of substance. > [@](#): > > Or the issues with inheritance? Your last quote deals with why Hardwicke’s Marriage Act was passed in the 1700s. Since marriages were being tracked much prior to that, and for a variety of different reasons, it’s unclear to me what you believe a cite from a mid-1700s case supports your claim that marriages were “originally” tracked for this purpose. ---
**Author:** ![rat\_avatar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rat_avatar/32/255_2.png) [@rat\_avatar](https://boards.straightdope.com/u/rat_avatar)\ **Post date:** [June 5, 2012, 4:41pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/248 "2012-06-05T16:41:43Z")
> [@Bricker](#): > > I asked for a cite. > Neither block of text says anything in support of your claim. To this day, in fact, by Roman Catholic Canon Law, matrimony is a sacrament that the two partners confer upon each other, and the presence of a priest is simply as a witness – just as your last cite suggests. But that is a requirement of form, not of substance. > > Your last quote deals with why Hardwicke’s Marriage Act was passed in the 1700s. Since marriages were being tracked much prior to that, and for a variety of different reasons, it’s unclear to me what you believe a cite from a mid-1700s case supports your claim that marriages were “originally” tracked for this purpose. You were no specific with your cite request, I had to guess. I should have worked that better, the reason states and churches imposed control over the marriage process was due a few causes the main being parents wishing to control who their offspring married and to prevent illicit marriages. The Catholic church did track earlier in order to ensure one did not marry twice, but they exerted little control over the process and it was not even officially documented as a sacrament in the church until Council of Trent in 1547. Marriage was for most of the Church’s early history, done in the Judaic tradition without clergy and according to local customs. ---
**Author:** ![rat\_avatar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rat_avatar/32/255_2.png) [@rat\_avatar](https://boards.straightdope.com/u/rat_avatar)\ **Post date:** [June 5, 2012, 4:48pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/249 "2012-06-05T16:48:42Z")
> [@Bricker](#): > > I said we could ask them before issuing a certificate. We wouldn’t hold them to it, recognizing that other factors get in the way, but we could ask if their intention is to have children, and if not, refuse to issue the license. > > That would be more narrowly tailored than the current scheme, and we don’t do it. Wouldn’t that violate the idea of the freedom of privacy in ones associations as decided in Griswold v. Connecticut? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 5, 2012, 4:51pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/250 "2012-06-05T16:51:29Z")
> [@rat\_avatar](#): > > Wouldn’t that violate the idea of the freedom of privacy in ones associations as decided in Griswold v. Connecticut? No. Privacy in one’s associations does not translate into a freedom to marry whom you please. You cannot marry your first cousin in Maine, regardless of any language in Griswold. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 5, 2012, 4:52pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/251 "2012-06-05T16:52:53Z")
> [@rat\_avatar](#): > > So you have two cases that do not prove your claim that marriage is “the right to marriage flows from the right to procreate as a matter of law” yet you refuse to provide that case law. > > I am not going to play your mental game in that last part, you are cherry picking and ignoring cases like Grizwold. > > Just provide cites that show that marriage was created as a civil institution, which is recent, due to procreation. > > I have provided documentation that as a civil institution it was more about inheritance and prevention of fraud, if what you claim is not true it should be trivial for you to provide documentation to falsify it. You cannot deal with the question of what makes marriage fundamental to the survival of the race if it’s not procreation. This is because answering the question forces you into a position that shows you you are wrong. The result is denial that Skinner and Loving give us precedent that gives us insight as to the modern construct of marriage. Claims that the important thing about marriage is REALLY so we can more easily solve inheritance issues is sophomoric. If there are no children to begin with, there is no inheritance issue. Your cite does more to prove why we keep marriage records, not why we have marriage itself. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 5, 2012, 4:56pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/252 "2012-06-05T16:56:04Z")
> [@rat\_avatar](#): > > I provided documentation that FoF miss stated those researchers claimed, but obviously you refused to read that, your cite is not case law, is opinion and is discredited. > > Repetition on your part does not win the argument. > > The cite is irrelevant anyway, spending more on your mobile phone or being a market segment does not make up for being unable to be by your loved ones side at their time of death. > > Luckily for all of us it doesn’t need to be strict for them to be awarded the right, I am not sure why you keep going back there except as a distraction from the real debate. > > 9th district…as in the 1st that is in the subject, why would I mention “one of the last districts” if I were speaking of amendments. > > Romer and Lawrence are directly related, they were in DADT, they were in Prop8 they are in this case. > > Have you even read the Districts decision? > > I note that you have not come back with what you are trying to protect as the “concept” of marriage. > > There are several studies that show that gay parents are as good as hetro parents. Married couples also tend to be more stable and more focused on the future. They also tend to lead healthier lives. > > All of these items are reason enough for me to want them to get married if they wish. You have provided nothing except Fear, Doubt and some biased unreliable source saying that they have some financial advantage. > > But what has changed in 20 years? Most people are well aware that gender preference is not a choice, most proponents of “treatment” now admit it does not work. All you have is that it is scary and doesn’t promote families. > > Many Gay and Lesbians make great parents and it doesn’t matter two hoots what my religious beliefs are, their marriage won’t do squat to me. > > I do not see where celebrating long committed relationships can be viewed as bad for the country. > > So once again, what is this “concept of marriage” that will be destroyed? I doubt you could brief the supreme court very effectively with that crap. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [June 5, 2012, 5:00pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/253 "2012-06-05T17:00:43Z")
> [@David42](#): > > You cannot deal with the question of what makes marriage fundamental to the survival of the race if it’s not procreation. Procreation is indeed fundamental to the survival of the race. But procreation and marriage are not the same. A couple could engage in both, either, or neither, perfectly legally. ---
**Author:** ![rat\_avatar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rat_avatar/32/255_2.png) [@rat\_avatar](https://boards.straightdope.com/u/rat_avatar)\ **Post date:** [June 5, 2012, 5:04pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/254 "2012-06-05T17:04:04Z")
> [@David42](#): > > You cannot deal with the question of what makes marriage fundamental to the survival of the race if it’s not procreation. > > This is because answering the question forces you into a position that shows you you are wrong. > > The result is denial that Skinner and Loving give us precedent that gives us insight as to the modern construct of marriage. > > Claims that the important thing about marriage is REALLY so we can more easily solve inheritance issues is sophomoric. > > If there are no children to begin with, there is no inheritance issue. > > Your cite does more to prove why we keep marriage records, not why we have marriage itself. Why? Procreation happens quite easily outside of marriage nor does marriage require children. Grizwold documents how marriage is related to the freedom of association, as a contractual obligation it is still quite capable of being an equally valuable institution without divination from the mechanical action of reproduction. As to why marriage exists in all of history, that is a red herring, you can’t even demonstrate your “concept” of marriage is codified in law, nor that it is historical. ---
**Author:** ![rat\_avatar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rat_avatar/32/255_2.png) [@rat\_avatar](https://boards.straightdope.com/u/rat_avatar)\ **Post date:** [June 5, 2012, 5:08pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/255 "2012-06-05T17:08:56Z")
> [@David42](#): > > I doubt you could brief the supreme court very effectively with that crap. And we are back to the ad hominem attacks with zero debate content. Good day sir. ---
**Author:** ![rat\_avatar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rat_avatar/32/255_2.png) [@rat\_avatar](https://boards.straightdope.com/u/rat_avatar)\ **Post date:** [June 5, 2012, 5:14pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/256 "2012-06-05T17:14:37Z")
> [@Bricker](#): > > No. Privacy in one’s associations does not translate into a freedom to marry whom you please. You cannot marry your first cousin in Maine, regardless of any language in Griswold. So besides DOMA what federal restrictions are there on marriage? Do they deny survivor benefits or health insurance to someone from Utah who is married to their first cousin? And what does a restriction on marriage in Maine have to do with a thread on a federal law? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 5, 2012, 5:14pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/257 "2012-06-05T17:14:54Z")
> [@rat\_avatar](#): > > You were no specific with your cite request, I had to guess. Fair point - my bad. > [@](#): > > I should have worked that better, the reason states and churches imposed control over the marriage process was due a few causes the main being parents wishing to control who their offspring married and to prevent illicit marriages. > > The Catholic church did track earlier in order to ensure one did not marry twice, but they exerted little control over the process and it was not even officially documented as a sacrament in the church until Council of Trent in 1547. Not quite true. The [Leonine Sacramentary](http://en.wikipedia.org/wiki/Sacramentary#The_Leonine_Sacramentary) has a ritual for a wedding mass. In 1012, the Synod of Rouen ruled that marriage vows exchanged in the presence of a priest were sacramental. The Council of Trent formally named all seven sacraments, yes, but it was undeniable well before that event that marriage was a sacrament, no matter how many other sacraments there might be or what form they would take. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 5, 2012, 5:20pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/258 "2012-06-05T17:20:23Z")
> [@rat\_avatar](#): > > So besides DOMA what federal restrictions are there on marriage? > > Do they deny survivor benefits or health insurance to someone from Utah who is married to their first cousin? > > And what does a restriction on marriage in Maine have to do with a thread on a federal law? Who knows? I was answering **david42** ’s claim that we could not more narrowly tailor the marriage law with a hypothetical requirement that would more narrowly tailor the marriage law, in an effort to show him that he was wrong when he said same-sex marriage restrictions would survive even strict scrutiny. My example was asking people if they intended to procreate. You asked me if sucha question would violate Griswold. I said it wouldn’t. Then you ask the questions above. I have no idea how they relate. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 5, 2012, 5:22pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/259 "2012-06-05T17:22:34Z")
> [@Bricker](#): > > I said we could ask them before issuing a certificate. We wouldn’t hold them to it, recognizing that other factors get in the way, but we could ask if their intention is to have children, and if not, refuse to issue the license. > > That would be more narrowly tailored than the current scheme, and we don’t do it. Shouldn’t further narrowly tailoring have an actual effect? The result of what you propose is going to have a result that everyone says yes even though some do not mean it. It is useless to restrict marriage to those who are going to have kids unless we enforce it. Can you give a cite to a precedent that an unenforcable narrowing is required to survive review? Or does it have to be an actual practical narrow tailoring? I don’t see the point of narrow tailoring if it’s just to satisfy some polite fiction. Something along the lines of: “This law could be more narrowly tailored, and althought that further narrowing is frivolous and serves no purpose since it can be enforced, the important thing here is appearances and formalities rather than the fundamental nature of the issues presented in (X). Because this law does not cater to appearances over substance, it must be struck down to preserve the important prerogatives of appearances without substance.” ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [June 5, 2012, 5:25pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/260 "2012-06-05T17:25:58Z")
Okay, Bricker, now try explaining David’s legal theory that fertility treatments turn marriages into threesomes. [Previous page](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653.md?page=12) [Next page](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653.md?page=14)