The frailty of the legal arguments against marriage equality was on full display during yesterday’s closing arguments in the Perry v Schwarzenegger trial. The proponents of upholding California’s Proposition 8, which bans same-sex marriage in the state, insisted during the trial that procreation is central to marriage, and that gay couples should therefore not be allowed to marry. The following exchange between Judge Walker and Charles Cooper, the attorney defending Prop 8, speaks for itself:
MR. COOPER: …Marriage is a license to cohabit and to produce legitimate children.
THE COURT: But the state doesn't withhold the right to marriage to people who are unable to produce children of their own.
MR. COOPER: That's true, your Honor, it does not. It does not insist --
THE COURT: Are you suggesting that the state should, to fulfill the purpose of marriage that you have described?
MR. COOPER: No, sir, your Honor. It is by no means a necessary -- a necessary condition or a necessary requirement to fulfilling the state's interests in naturally potentially procreative sexual relationships.
Dante Atkins on the Daily Kos summarizes the circular argument Cooper tried to make:
Let's recap this thread between Cooper and Walker, because it's just embarrassing. Cooper says that opposite-sex couples who can't procreate get the ancillary benefits of marriage, like stability, loving commitment, etc. Walker asks: well, don't same-sex couples get those same things through marriage? And Cooper responds: "but they can't procreate!" And there we are, back at square one. It's an embarrassingly dreadful performance from a legal point of view, because Cooper has completely avoided the question of why it's constitutional to deny same-sex couples the ancillary benefits of marriage that Judge Walker outlined.
Why did Cooper and his colleagues rely on this weak argument? Because they thought the Court would view it more favorably than the toxic anti-gay rhetoric proponents of Prop 8 used in 2008 to convince California voters that same-sex marriages were a threat to children. Christopher Stroll at Pam’s House Blend writes:
[Plaintiffs’ attorney Ted] Olson hammered home the point that during the election, Prop 8 backers argued that children needed be "protected" from gay people -- but during the trial, the Prop 8 backers did not raise this argument, which echoes themes that anti-gay forces have used for decades to stigmatize and marginalize gay men and lesbians. Instead, the attorneys defending Prop 8 argued that same-sex couples must be excluded from marriage because the purpose of marriage is procreation.
Another baseless argument that backers of Prop 8 made was that gay marriage would “deinstitutionalize” marriage. Olson eloquently debunked that particular right wing myth:
The plaintiffs have no interest in changing marriage or deinstitutionalizing marriage. They desire to marry because they cherish the institution.