Prop 8 Update: Marriage Is Not About Procreation

Photo: Wikimedia Commons

Fight disinformation: Sign up for the free Mother Jones Daily newsletter and follow the news that matters.


I read the entire 164-page transcript of this week’s closing arguments for the Prop. 8 trial, which will determine whether gays can marry in California. Here’s everything you need to know:

On Wednesday, Charles Cooper (the attorney defending the state’s ban on gay marriages) continued to fling fallacious appeals to tradition, including his signature “marriage is solely for procreation” schtick. Judge Vaughn Walker didn’t buy it. Ted Olson, “the godfather of the conservative legal movement” (see also: the attorney fighting against Prop. 8), skillfully refuted it.

Olson hit the discriminative nail right on its bigoted head when he said “people passed Proposition 8 because they don’t—they think gays are unusual.” Cooper disputed this claim by saying voters believe that “society would come to an end” if gays married since “the central purpose of marriage in virtually all societies and at all times has been to channel potentially procreative sexual relationships into enduring stable unions to increase the likelihood that any offspring will be raised by the man and woman who brought them into the world.”

Yes, Cooper really did say that in one breath. And he said it with all the logical holes you see here, since state laws generally don’t bar straight couples from marrying if they don’t want children or can’t conceive, which Judge Walker noted. Walker also pointed out that the state generally doesn’t care whether a child is conceived in wedlock, by accident, or through a one-night stand, whether via in vitro fertilization, surrogacy, or some other way. The state only cares that a child is taken care of once born, which adoption by gay married couples would help to do. How did Cooper fare after that, you ask? Spoiler alert: Not well.

When asked to supply concrete evidence that regulating marriage would promote “responsible procreation,” Cooper said, “you don’t have to have evidence of this point.” Cooper then contended that same-sex marriage jeopardizes the survival of mankind by jeopardizing the way nature intended things to be. (Too bad homosexuality occurs in nature, which ends that paltry excuse.)

Olson then pointed out that the end-of-the-human-race argument assumes that every man and woman is gay, and that on hearing the words “same-sex marriage is legal,” suddenly the majority of society will realize they’ve been in the closet all along! Gay people account for about 10 percent or less of the population, and obviously some do conceive by using some of the alternative methods mentioned above. But in truth, the downfall of humanity is unlikely to be due to a lack of conception. And if the success of traditional heterosexual marriage is a reason to maintain its man-woman status, here’s a heads up that its sanctity was infiltrated (PDF) a while ago. The US—whether the majority is aware of it or not—has already redefined marriage.

Some debate on how sexual orientation is determined—is it genetic or learned?—went on. After that thought exercise, the question became: How can any government justify the unconstitutional practice of segregation? Olson said it best: “Marriage, the Supreme Court has said again and again, is a component of liberty, privacy, association, spirituality and autonomy. It is the right of individuals, not an indulgence dispensed by the State of California, or any state, to favored classes of citizens which could easily be withdrawn if the state were to change its mind about procreation. It is not a right belonging to the State of California.” Score!

Even if the US District Court supports Prop. 8, which is unlikely, the US Supreme Court may rule that state laws barring gay marriages are unconstitutional. Just as it did in similar cases back in 1967 and 1978, when lawyers likewise argued that interracial marriages would destroy society.

Walker is expected to deliver his ruling in July or later. Stay tuned!

We've never been very good at being conservative.

And usually, that serves us well in doing the ambitious, hard-hitting journalism that you turn to Mother Jones for. But it also means we can't afford to come up short when it comes to scratching together the funds it takes to keep our team firing on all cylinders, and the truth is, we finished our budgeting cycle on June 30 about $100,000 short of our online goal.

This is no time to come up short. It's time to fight like hell, as our namesake would tell us to do, for a democracy where minority rule cannot impose an extreme agenda, where facts matter, and where accountability has a chance at the polls and in the press. If you value our reporting and you can right now, please help us dig out of the $100,000 hole we're starting our new budgeting cycle in with an always-needed and always-appreciated donation today.

payment methods

We've never been very good at being conservative.

And usually, that serves us well in doing the ambitious, hard-hitting journalism that you turn to Mother Jones for. But it also means we can't afford to come up short when it comes to scratching together the funds it takes to keep our team firing on all cylinders, and the truth is, we finished our budgeting cycle on June 30 about $100,000 short of our online goal.

This is no time to come up short. It's time to fight like hell, as our namesake would tell us to do, for a democracy where minority rule cannot impose an extreme agenda, where facts matter, and where accountability has a chance at the polls and in the press. If you value our reporting and you can right now, please help us dig out of the $100,000 hole we're starting our new budgeting cycle in with an always-needed and always-appreciated donation today.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate