Marriage = procreation, Prop 8 backers say

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.

Prop. 8 backers: Marriage promotes procreation.

Judge to rule on same-sex marriage

Can gay marriage be a fundamental right, when all legal protection has been denied until recently? In a state that treats domestic partners the same as spouses, “what purpose is served by differentiating – in name only – between same-sex and opposite-sex unions?”

These are two of the questions sent to opposing lawyers by U.S. District Judge Vaughn Walker, who will hear their closing arguments next Wednesday in the San Francisco case being watched for broader implications. Supporters of gay rights are seeking to overturn Proposition 8, California’s voter-approved ban on gay marriage.

The closing arguments won’t be watched by just anybody. Judge Walker ruled late this week that arguments may not be televised beyond the closed circuit of the courthouse. So you’ll have to be on site to follow the proceedings up close and personal. Media organizations had sought to have the session, which is expected to last all day, televised; proponents of Prop 8 argued against the idea.

The denial means “the public will again only hear about this case second-hand,” said Thomas Burke, the media groups’ lawyer.

Andrew Pugno, a lawyer for sponsors of the ballot measure that banned same-sex marriage, countered that “the purpose of the court is not to entertain or educate the public, but to protect the right to a fair and impartial trial.” The sponsors had opposed televising any trial proceedings.

Two same-sex couples and the city of San Francisco have sued to overturn Proposition 8, the November 2008 initiative that amended the California Constitution to define marriage as the union of a man and a woman.

Walker presided over the non-jury trial in January. He had proposed to televise the trial live to several federal courthouses around the nation and record the proceedings for a delayed Internet posting on YouTube.

The telecast, which would have been the first for a federal court in California, was blocked by the U.S. Supreme Court just before the trial started.

In a 5-4 ruling, the court said Walker hadn’t given the public enough time to comment on the proposed change in court rules. The court also cited claims by Prop. 8’s sponsors that showing the proceedings outside the courthouse might intimidate witnesses.

Media organizations asked Walker last month to approve televising the closing arguments. They said that airing a hearing that included only lawyers and the judge couldn’t affect witnesses or the fairness of the trial.

Prop 8 supporters argued, though, that cameras in the courtroom could prompt “grandstanding and avoidance of unpopular decisions or positions.” Whatever the judge’s decision, it is guaranteed to be widely unpopular.

No TV for closing arguments in Prop. 8 trial.