Really?
So are you saying that a man and woman, both beyond reproductive years, should be forbidden to marry?
Perhaps so. There is a very sound argument put forward, however, that if marriage (real marriage between a man and a woman) is a social good then the modeling of that relationship helps promote that social good.
Furthermore, the law does not forbid private citizens from arranging their private lives as they see fit. Civil sanction of marriage conveys benefits. Lack of a civil marriage license does not bar private conduct that the state has no interest in providing incentives for.
Or a couple, one of whom is infertile, should be denied marriage? Or, maybe, after they marry and it turns out that one is infertile, that the government should dissolve their marriage?
The government might be justified in doing so, but will not be able to do so because obtaining sufficient evidence to do so has been ruled an illegal violation of medical privacy, while one’s sex is a matter of public record. Also, those who are document to be closely related enough to be inbreeding are forbidden to marry, specifically because of the fertility problems of inbreeding.
So yes, some hetero-sexual unions are already excluded from being given incentives to marry based on the fertility of their union.
The one question the judge (who is himself a proud homosexual man) refuses to answer is this: What benefit do two people committing homosexual acts provide society that two people in a union that do not commit sexual acts can not provide?
Of course, the judge also asserts that “sexual orientation deserves the constitutional protection given to race and gender” (
Sourced) in his ruling, exhibiting a complete lack of respect for the proper role of the judiciary in our political system. No judge
ever gets to decide such a matter. The protections he cites are placed in the Constitution by the Legislative process and the Ratification process of the States, not by any judge ever. In adding such an opinion from beyond the qualifications of his position to an official judicial ruling he has shown contempt for the limits the Constitution places on his role in the process. His personal opinion
does not count.
The Legislative Branch has the exclusive authority to transform the opinions and desires of its members into law. The Judicial Branch is limited exclusively to faithfully interpreting the Law As Written in the process of Judicial Review.