It’s all about procreation, the Proposition 8 lawyers said; marriage between a man and a woman who produce babies to be raised by their biological parents, and thus insure the survival of the human race. Those arguments were the closing of an historic case that went to a federal judge in San Francisco yesterday.
During more than two hours of intense and sometimes skeptical questioning by Chief U.S. District Judge Vaughn Walker, attorney Charles Cooper maintained that society is entitled to reserve its approval of marriage for those who can naturally conceive children.”The marital relationship is fundamental to the existence and survival of the race,” Cooper said in closing arguments before a packed San Francisco courtroom. The reason the state regulates marriage, he said, is to steer “procreative sexual relationships” into a stable family environment so that children can be raised by their biological parents.
It’s an argument that has worked before, but supporters of same-sex marriage hope this time might be different.
Walker, who presided over the nation’s first federal trial on the issue, sounded dubious. He noted that the state allows couples unable or unwilling to have children to marry, suggesting that the institution has a broader purpose that same-sex partners might equally fulfill.
“Marriage is a right which extends fundamentally to all persons, whether they’re capable of producing children, incarcerated or behind in their child-support payments,” Walker said, citing Supreme Court rulings that allow people in all those situations to marry.
People marry not to benefit the state, but because they believe that “I’m going to get a life partner, who I’m going to share my life with and maybe have children,” the judge said. “Why don’t those same values apply to gay couples and lesbian couples loving one another?”
Cooper replied that same-sex couples are incapable of “irresponsible procreation,” which he said marriage laws are designed to discourage.
He also said California has provided equal treatment for all couples in its domestic-partner laws. But even a discriminatory marriage law would be valid, Cooper said, because the U.S. Constitution offers no special protection to gays and lesbians and “we don’t have to submit evidence” to justify treating them differently.Theodore Olson, lawyer for two same-sex couples who sued for the right to marry, responded indignantly. Prop. 8, he said, “takes a group of people who have been victims of discrimination” historically and prevents them from “participating in the most fundamental relationship in life.”
Gays and lesbians, Olson said, seek to wed for the same reasons as everyone else, to be in a committed, socially accepted family relationship with the one they love. “Tell me how it helps the rest of the citizens of California to keep them out of the club,” he said.
Walker’s decision, in whichever direction, is certain to be appealed.