Here is the quote from the Wisconsin same gender marriage case- you can look up the link yourself
:
Neither argument is persuasive. First, amici’s argument that it would be “difficult (if
not impossible)” to attempt to determine a couple’s ability or willingness to procreate is
simply inaccurate. Amici identify no reason that the state could not require applicants for
a marriage license to certify that they have the intent to procreate and are not aware of any
impediments to their doing so.
In fact, Wisconsin already does inquire into the fertility of
some marriage applicants, though in that case it requires the couple to certify that they are
not able to procreate, which itself is proof that Wisconsin sees value in marriages that do not
produce children and is applying a double standard to same-sex couples. Wis. Stat. §
765.03(1) (permitting first cousins to marry if “the female has attained the age of 55 years
or where either party, at the time of application for a marriage license, submits an affidavit
signed by a physician stating either party is permanently sterile”).
To the extent amici mean
to argue that an inquiry into fertility would be inappropriately intrusive because opposite-sex
married couples have a constitutional right not to procreate under Griswold, that argument
supports a view that the same right must be extended to same-sex couples as well
Like defendants’ argument regarding “responsible procreation,” amici’s alternative
argument that “mathematical certainty is not required” is contingent on a rational basis
review, which I have rejected. Further, this rationale is suspicious not just because
Wisconsin has failed to ban infertile couples from marrying or to require intrusive tests to
get a marriage license. Rather, it is suspicious because neither defendants nor amici cite any
instances in which Wisconsin has ever taken any legal action to discourage infertile couples
from marrying. There is also little to no stigma attached to childless married couples.
Neither defendants nor amici point to any social opprobrium directed at the many millions
of such couples throughout this country’s history, beginning with America’s first family,
George and Martha Washington, who had no biological children of their own.
George Washington - Wikipedia the free encyclopedia (visited June 6, 2014).
The lack of any attempts by the state to dissuade infertile persons from marriage is proof that marriage is
about many things, including love, companionship, sexual intimacy, commitment,
responsibility, stability and procreation and that Wisconsin respects the decisions of its
heterosexual citizens to determine for themselves how to define their marriage. If Wisconsin
gives opposite-sex couples that autonomy, it must do the same for same-sex couples
