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They also argue that inferring any discrimination in Nevada’s recent decision to recognize civil unions while maintaining a traditional "benign" definition of marriage "unfairly penalizes, and can only discourage, social experimentation."
The fact that some opposite-sex couples are unable or do not want children nevertheless reinforces the "traditional marriage norm," the attorneys general said.
"Besides, it would obviously be a tremendous intrusion on individual privacy to inquire of every couple wishing to marry where they intended to or could procreate," the filing states. "States are not required to go to such extremes simply to prove that the purpose behind civil recognition of marriage is to promote procreation and child rearing in the traditional family context."
The filing draws conflicting conclusions about how the U.S. Supreme Court’s decision in United States v. Windsor, issued last June, supports the states’ positions. The decision upholds the right of states to regulate marriage, they say, referencing decisions that date back as far as 1888.
"The Supreme Court long ago identified the axiom of state sovereignty that ‘the whole subject of domestic relations of husband and wife, parent and child, belongs to the laws of the states, and not to the laws of the United States,’ " they said, quoting from an 1890 case.
The 9th Circuit Court’s recent decision in another case, which drew on Windsor in concluding that it was unconstitutional to bar a prospective juror because of sexual orientation, doesn’t apply, the attorneys general said.
"These technical, doctrinal inquiries only confirm what common sense tells us: traditional marriage arises from concern for opposite-sex couples, not same-sex couples," they said.
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