already have....they can't prove any reason for 'equal protection' because they can't prove immutability of sexual preference in Court...therefore they resort to 'choice'.....
...which leads to above questions.....
Not one law pertaining to restricting Civil Marriage was written on sexual orientation, each and every one was written in terms of gender - an immutable characteristic.
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thereby providing 'choice' regarding gender....
Gender is not a "choice" it fixed in womb. People are born with either male genital or female (barring the very, VERY rare case of a child born with both sets of sex organs).
(& marginalizing children)
I agree, the discriminatory laws are marginalizing children. The last census showed that 25% of same-sex couples were raising children. During the oral arguments it was pointed out thawt 40,000 children in California were being marginalized because of the discriminatory law.
why not 'choice' for the number as well....?
Bigamy is illegal, being homosexual is not.
But since you asked, there is a compelling government interest in limiting Civil Marriage to two people...
1. The Supreme Court, who according to the Constitution (Article 3, Section 2) arbitrate Constitutional issues as to law and fact. The Constitutionality of legally barring polygamy as a function of Civil Marriage was decided in 1878 in Reynolds v. United States. As such polygamous Civil Marriage does not fall under "Civil Rights", people have the right to Civilly Marry (assuming competence to make such a commitment) but do not have a right to Civilly Marry more than one person.
2. Secondly, because something is a Civil Right does not mean that the exercising of that right cannot be made conditional or restricted if there is a compelling government interest in restricting such activity. Recognition of Civil Marriage for same-sex couples requires no real changes in the functioning of civil law. The system and structure of Civil Marriage already exists, adding same-sex couples makes no change to that structure. On the other hand, providing polygamy under Civil Law would greatly complicate the functioning of government. At last count (around 2004 IIRC) there were 1,134 Federal laws in which Civil Marriage was a condition of the law, then add to that hundreds of laws for each State. When you have two people legally entering a spousal relationship, then laws are pretty straightforward on the application of those laws under different circumstances such as tax law, inheritance, transfer of property, parentage, child custody, social security, medical decision making, etc.
Take for example the logical condition of two spouse Civil Marriage, you have person A married to person B. The functional aspects of government are pretty easy to define in terms of two people. On the other hand when you have a polygamous Civil Marriage involving person A, person B, person C, and person D. Then A+B+C+D are married to each other as a group. In addition B+C+D are married to each other whether A is in the equation of not. Same with A+C+D. Same with A+B+D. Same with A+B+C. Then of course A+B are married individually. Same with A+C. Same with A+D. Then of course B+C are married individually. Same with B+C. Same with B+D. Etc. Etc. The complexity of the legal rights, responsibilities, and benefits grows exponentially with each additional spouse as the same degree of marriage between individuals to each other individual and to the group in general grows.
Now, take each of the previous examples (tax law, inheritance, transfer of property, parentage, child custody, social security, medical decision making), which are only a small fraction of the thousands of laws, and extrapolate the complexity of A+B+C+D (and all the various permutations that creates) and government could not functionally work in the area of Civil Marriage.
Therefore, there is a compelling government interest in limiting Civil Marriage to two spouses as increasing the number of spouses makes the legal consequences of additional spouses and the functional cost of government in managing it's programs as they relate to that complex Civil Marriage unmanageable.
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