The Maine statute may be the narrowest in scope251The five states that permit marriage where the couple is old or infertile may already be in active violation of the right to privacy. The courts have found greater value in showing interstate comity by recognizing marriages licensed abroad than in enforcing the cousin bans,279Storke, supra note 55, at 49397; Loughmiller, 629 P.2d at 158 (The general rule with regard to the recognition of marriages solemnized elsewhere is that if the marriage is valid where contracted, it is valid everywhere.). See infra Section I.C.5. Such an approach would have required expansion of substantive due process but, in Justice Stewarts view, broadening that murky doctrine would have been preferable and more consistent with past principles of constitutional analysis. U. L. Rev. 13-3608, 25-101. Marriage was not merely a permitted activity a state could encroach upon with little justification, but a right expressly protected by the Constitution from a measure of state intrusion.71Id. Justice Stewart emphasized that the due process liberty promise normatively and sufficiently accomplished protection of fundamental rights, including the right to marry.90Id. How to Use Shared DNA to Determine Relationships, Fam. Of course, we have by now established that more than half the nation prohibits or severely restricts cousin marriage, a percentage that cannot accurately be called a handful. See supra Section I.B. It is because once people are above the age of 55 years, they become infertile and cannot have children. . The state must produce sufficient grounds for believing the definite and observable characteristics of a disease are transmissible and likely to manifest in future generations to justify such a shocking infringement of a constitutionally-protected right.187Skinner, 316 U.S. at 546 (Jackson, J., concurring) (rejecting the states plan to sterilize the individual in pursuit of a eugenic plan to eliminate from the race characteristics that are only vaguely identified and which in our present state of knowledge are uncertain as to transmissibility). The nuclear familys asexual safety net remains intact,301Supra Section II.B.2. The site has grown to include hundreds of cousin-couple members who exchange advice and discuss their relationships in the safety of the message board.
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