Closing Arguments In California Gay Marriage Case

Ken AshfordConstitution, Sex/Morality/Family ValuesLeave a Comment

In the long run, what happens in the California Federal Court — where the constitutionality of the infamous Prop 8 is being challenged — will not matter; no matter the outcome, an appeal all the way to the U.S. Supreme Court is likely.

But nevertheless, it is interesting to read news accounts of the closing arguments given by boths sides in the case.  I try to be objective, but it seems to me that the pro-gay marriage side has, by far, the better argument.  The pro-gay marriage argument is quite simple: it is discriminatory, and the state is denying what has been called (by the U.S. Supreme Court) a "fundamental right" (the right of marriage) to segments of people.

Those opposed to gay marriage are relying on essentially two arguments: (1) marriage throughout history has traditionally been between a man and a woman and (2) traditional marriage is fundamental to sustaining society because it is the basis for procreation and healthy child-raising.

The problem with the first argument is obvious: Even with the legality of gay marriages, marriages will still traditionally be between a man and a woman.  Traditionally, people of the same races marry, too, and that's still true even when interracial marriage became permissible.  The institution of marriage is still available to heterosexual couples, even after it becomes available to gay ones.

The second argument is simply silly because (a) many people get married without having children (octogenarians, barren people) and the state doesn't care; and (b) it is legal and permissible for an unmarried couple to have and raise a child. So it is disingenuous to claim NOW that the state suddenly is interested in the marriage-procreation business.

I mean, think about it — if the state's interest in marriage is that it serves as a basis for procreation, then why doesn't the state forbid 60 year old couples to marry?

It looks like the trial judge is leaning toward siding with the gay marriage arguments:

Judge Vaughn Walker seemed skeptical of the attorneys defending Proposition 8, which has outlawed same-sex marriage in the state since late 2008.

Walker, in particular, challenged the argument that the institution of marriage is aimed primarily at serving society’s interest in procreation.

There are plenty of heterosexual couples who can’t have, or don’t want, children, the judge remarked.

“Do people get married to benefit the community?” Walker asked. “When one enters into a marriage, you don’t say, ‘Oh boy, I’m going to benefit society!”

Ultimately, as I say, the outcome of this case matters little.  It'll move upward to the 9th Circuit, and then, the U.S. Supreme Court.