The definition of marriage was central to closing arguments in the Perry case Wednesday. The Supreme Court has repeatedly held that marriage is a fundamental right under the Due Process Clause. If heterosexual procreation is implicit in that fundamental right, Prop 8 likely survives the plaintiffs’ Due Process argument. But if marriage is two people’s mutual commitment to enter a legally sanctioned social unit, and if it involves individual freedom and autonomy in choosing a life partner without regard to gender, then the state and voters need a very good reason to deny marriage to gays and lesbians. Given that Prop 8’s proponents submitted minimal expert testimony, they will likely lose if the court finds that the fundamental right of marriage extends to gays and lesbians.
To the defenders of Prop 8, sexuality and “responsible procreation” are central to marriage. Marriage is a means of channeling straight peoples’ sex lives into a relationship that increases the likelihood that their children will be raised by biological parents. That is why it is constitutionally permissible to exclude gays and lesbians from marriage, said Charles Cooper, lead attorney for the proponents of Prop 8. Unlike straight couples, who can have children by accident, gay couples must affirmatively choose to have children. Because the children of gay parents are necessarily desired, Cooper said, they are not as likely as children of straight couples to become a drain on state resources. Thus it is entirely reasonable for the state to extend marriage only to straight couples, Cooper said.
Cooper and his legal team offered no evidence that excluding gays and lesbians from marriage advances responsible procreation. No evidence is necessary, Cooper said, because no one knows the impact gay marriage would have on heterosexual marriage. It’s enough that there’s a risk, and “it couldn’t be more rational for the people of California to say, we aren’t going to run that risk,” Cooper said.
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