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> There is no Constitutional right for gays to marry.

There is no Constitutional right for anyone to marry. Full stop.

There is a Constitutional right for equal protection under the law.

Even as someone who agrees Roe is doctrinally problematic, I think Obergefell is a straightforward equal protection issue. Marriage as a construction of the state has always primarily been about property rights, not procreation. In the Anglo system it is seen as quasi-contractual. In a system where church and state are seperated, that's the relevant purpose of marriage. Gay marriage bans violate equal protection because they preclude gay couples from entering into those economic arrangements.

Procreation is a red herring. If the government wanted to encourage procreation, it would tie the benefits of marriage to actually raising (which both gay and straight couples can do). The fact that marriage isn't tied to child raising suggests any putative arguments based on that are pretextual.

Marriage is more than property rights. We have deeds for that. I list the principle reasons for marriage, including devising property.

The state does limit marriage, in part for procreation. For instance, the limits on the degree of consanguinity are to prevent birth defects. There are also age restrictions, which relate to the ability to give birth. So, in a sense, it is tied to procreation.

Age restrictions on marriage have little to do with childbearing, as they are almost invariably set many years after the point where a woman can bear children, and depart from the (awful) historical norm of women being married off as children --- and as property --- as soon as they reach that age.

If you were casting about for further evidence for your argument that marriage is more about the sanctity of procreation rather than about property rights, I think you've hit on something here that harms that argument.

Marriage as a state-sanctioned construct is almost entirely about property and other legal rights. You cannot achieve the effect of marriage using a combination of other legal constructs. For example, even a prenuptial agreement cannot fully divest a spouse of rights in property acquired during marriage. Moreover, you cannot create things like spousal privilege contractually.

In contrast, child-rearing works more or less the same whether or not the couple is married. The rights and obligations attendant to children arise out of the parental relationship, not the marriage. About the only practical parental right tied to marriage that I can think of is the legal presumption in most states that a woman's husband is the father of any child she has during marriage.

The 9th amendment explicitly says that just because a right is not enumerated in the constitution, doesn't mean it isn't there. I.e. individual rights are protected by the constitution whether they were spelled out or not. I can't think of a better indication from the framers that the document was intended to be interpreted liberally, to err on the side of individual rights rather than legislative power.

The purpose of the bill of rights was to restrict government. So, the framers did not want their list to limit rights of the people. That is the purpose of the 9th Amendment (especially read in light of the 10th Amendment). Yes, there are ways to add rights: the states can add their own rights, and there is a process for amending the Constitution to add more rights. However, judicial interpretation is not one of them.

Procreation is not the purpose of marriage.

Some religious groups might hold that claim, but in this country we do not recognize one religious group over another; i.e. one group's claims about the purpose of marriage have no weight over anyone else's.

In western civilization, marriage is the structure of procreation and has been enshrined in the law since the 1200s, notwithstanding any religious beliefs. Procreation encompasses many facets: sexual selection, child rearing, passing property to progeny, recognition of the paternal family line. All of these are governed by the state through marriage laws in order to further the policy of procreation, the natural survival of our species.

In the Bible, Paul justifies marriage as a way of controlling the sexual desire so it does not lead to the sin of fornication. But he does not seem to care about procreation.

Sexual selection is one of the principles I mention. Sexual context may be a better term. But my argument is secular, not religious. I am referring to American common law, English common law, and its predecessors, not the Bible.

I think it's safe to wager that the original purpose of marriage was indeed procreation, curbing reproductive fraud and providing stability for families. Then it got hijacked by religions and then by countries and what it is today nobody even knows anymore...

Another theory is marriage is about economics. Combining the wealth, power, and influence of 2 families.

Gay couples procreate the same way many straight people do. Sperm or egg donors, surrogates or adoption. Before marriage equality many states didn't recognize two party adoptions. Which left gay families in precarious positions.

Presumably at some stage it will be possible for female couples to have babies using artifical mechanisms. Would you consider this to be suffcient for marriage? Does the procreation have to be natural?

That is a good question that I have thought about. My first response is to wait until that happens; law does not deal with hypotheticals. Also, you are only talking about female gays, not male, so how do you write the law? As technology progresses, the laws will have to catch up. At this point, I would say that true homosexual procreation (genetic material from each parent) would probably remove that rationale for excluding them from marriage. But then, you would have to re-define marriage in a whole new way. A better place to do that would be in the state legislatures.

As long as we are re-defining marriage, I have always thought the idea of marriage for life was old-fashioned. I think a marriage contract should last 20 years, or until the youngest child reaches 18, renewable, of course.

"Second, for the purpose of marriage, gays are not equal: it is impossible for them to procreate, which is the purpose (but not a requirement) of marriage."

This an extremely biased statement. Just because a person is gay doesn't mean that they have different biology than a person who is not.