There’s an interesting and new (as in, I’ve never seen it before) theory lurking in Michigan’s reply in _DeBoer v Snyder_, filed with the Supreme Court today.
One of the problems for the anti-SSM legal argument is that the Supreme Court has repeatedly declared marriage to be a fundamental right – specifically in cases where it said that a state could not prohibit someone from getting married because he was in arrears in his child support payments, and a case in which the Supreme Court said a state could not require that imprisoned felons obtain the permission of their warden before getting married.
The standard way to deal with this is to say that *opposite sex marriage* is a fundamental right, but *same sex marriage* isn’t a fundamental right; it’s a novation and as such isn’t subject to the same protection as traditional fundamental rights.
Michigan’s brief suggests a different way to deal with it. Those decisions weren’t actually about *marriage*. See, in the states that gave rise to those decisions, extramarital sex was illegal. So by saying that the states couldn’t deny someone the fundamental right of marriage, the court was really trying to say that the state couldn’t leave these people with no legal outlet for sexual activity. Now that we recognize the fundamental right of intimate personal association and laws banning extramarital sex are presumed unconstitutional, there’s no longer a *need* for a fundamental right of marriage, and states are free to go back to treating marriage as a vehicle for encouraging procreation.
I think it’s a massive distortion of the precedents in question. But it’s *clever*, and it’s new – and honestly, having read hundreds of briefs in these cases over the year, anything truly new is kinda exciting.