Jacob Levy on Volokh has a posting on whether it is constitutional for a state to ban non-procreative marriage. Of course it is. Here's an email I sent Professor Levy, commenting on how states have actually done this, with wide public support.

I agree with Romesh Ponnuru that the states have the right to ban nonprocreative marriage. In fact, they've already done it. Moreover, they've banned all other kinds of marriage too.

That is hyperbole, but what I mean is that the states have redefined marriage from being a lifetime relationship severable only by severe fault of one party and involving heavy obligations on each side to being a relationship that can be terminated at will by either party and has few obligations. About all that survives is the idea that at divorce or death, marriage has a big effect on the division of assets.

I think homosexuals would be less enthusiastic about marriage if it was permanent and involved penalties for infidelity and strong duties of obedience and support. Of course, it seems the median heterosexual voter is unenthusiastic about traditional marriage too.

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