The Court described marriage as one of the " `basic civil rights of man,'fundamental to our very existence and survival. "Id

It is undisputed that the right to procreate is considered fundamental under the United States Constitution

—the Court struck down a criminal statute requiring sterilization of those convicted of three or more felonies involving "moral turpitude."

The "rights to conceive and to raise one's children have been deemed `essential,'`basic civil rights of man'.... `It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.'"

When the law lays an unequal hand on those who have committed intrinsically the same quality of offense... it has made an invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment ";" The equal protection clause would... be a formula of empty words if such conspicuously artificial lines could be drawn

—"]; see generally Blankenhorn, The Future of Marriage (2007) pp. 23-125), and although the right to marry and to procreate often are treated as closely related aspects of the privacy and liberty interests protected by the state and federal Constitutions

While Young was decided in 1999, it rested on a firmly established principle in existence at the time of events in question: that heightened scrutiny will be applied where a fundamental liberty interest is at stake.

Whether such intrusion is consensual has been a key consideration in determining the constitutionality of such invasion of an individual's person since at least 1942, when the Supreme Court held that the forced sterilization of adults is unconstitutional.

While many US Supreme Court decisions recognize marriage as a fundamental right protected under the Due Process Clause, all of these cases understood the marriage right as involving a union of one woman and one man