Different from most -- but not all

Iowa Supreme Court Justice Cady in his pro-SSM opinion:

Despite the commonality shared with other Iowans, the twelve plaintiffs are different from most in one way. They are sexually and romantically attracted to members of their own sex.

This is irrelevant to the marriage law.

But Cady equated "same-sex" with homosexual orientation. This he defined as sexual and romantic attraction to the same sex.

Yet he provided no sexual aspect in the law that would justify transformation of "same-sex" into "homosexual".

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The sexual aspect of the union of husband and wife was discarded when Cady said that the ability to procreate naturally was "insufficient" to support the state's argument that same-sex and opposite-sex relationships were dissimilarily situated.

Cady did not discuss the marital presumption of paternity for he dismissed sex differentiation in parenting, as well.

In this way Cady disregarded the core meaning of the social institution that the marriage law recognizes rather than creates.

The purpose of marriage law?

According to the Justice's opinion, the purpose of the marriage law is for the government to provide a sense of order to the legal relationships of committed partners and their families.

Now, one might ask, what sense of order is provided for unions of husband and wife when the sexual aspect of marriage is marginalized? The very aspect that legitimizes children as the natural progeny of the husband and the wife together? How does society benefit?

This willful judicial blindness to the sexual aspect of marriage law must now mean that eligiblity will be determined based on the extent to which those who come for a license to marry are similarily situated with same-sex relationships. For this becomes the new test of the constitutionality of the elegiiblity rules.

Similarily Situated.

Consider the range of man-woman combinations which are ineligible due to consanguinity and affinity. See the Iowa Code, Chapter XV, Subtitle 1, 595.19.

Despite the commonality shared with other Iowans, the plaintiffs are different from most in one way. They are sexually and romantically attracted to closely-related persons.

Or, since the sexual aspect is no longer sufficient to disqualify some people, then, mutual consent would suffice.

Despite the commonality shared with other Iowans, the plaintiffs are different from most in one way. They are mutually caring and committed and share dependancies with closely-related persons.

But waitaminute.

The marriage law does not inquire after sexual and romantic attractions. The man-woman criterion is neutral on that point.

But the sexual aspect is central to the marital presumption of paternity, now dropped dead by Cady's opinion, and one should not expect it to be revived as a trait that would distinguish a class of Iowans from most other Iowans for the purpose of marriage law.

Questions for SSMers.

Can someone please identify the sexual aspect, if any, on which Cady has based his opinion? How did he transform "same-sex" into "homosexual"? Is there a new legal requirement for homosexual attraction? I don't think you'll discover this in his reasoning. You might hope to read it into his remarks, but it is not there.

If there is no sexual aspect in the marriage law, at least none that Cady's opinion could tolerate as constitutional (such as societal concerns for responsible procreation and sex integration) then, on what basis would the lines drawn against first-cousins be sustained, for example? See the Iowa Code, Chapter XV, Subtitle 1, 595.19.

Maybe social taboo or revulsion or tradition or public morality. Or the assumpton that few people would marry closely-related persons. But this would directy contradict the insistence of SSMers that these are insufficient reasons to deny "marriage equality".

The presence or lack of romance is not relevant, nor is the presence or lack of sexual attraction, given Cady's stated purpose for the marriage law. You wouldn't rely on tradition alone, right?

And yet Justice Cady indicated that such attraction was decisive in his reasoning. But without a sexual aspect, his reasoning flies apart.

Or, more accurately, his reasoning flies away from marriage.