The only rationale that the states put forth with any conviction-that same-sex couples and their children don't need marriage because same-sex couples can't produce children, intended or unintended-is so full of holes that it cannot be taken seriously.
Richard PosnerThe Constitution has to be interpreted loosely, otherwise it becomes a straitjacket. You can't interpret it literally. You can pretend to, and go digging around in 18th Century dictionaries to figure out what 'cruel and unusual punishment' meant or what the 'right to bear arms' meant, but that is all fake really. The Constitution has to be interpreted in light of modern needs, and that's what they (the strict interpreters) end up doing in spite of all their investigations.
Richard PosnerHeterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.
Richard PosnerThe confidentiality of the judicial process would not matter greatly to an understanding and evaluation of the legal system if the consequences of judicial behavior could be readily determined. If you can determine the ripeness of a cantaloupe by squeezing or smelling it, you don't have to worry about the produce clerk's mental processes.
Richard Posner