Alex Blaze

If it's all about procreation, then why did I just marry an octogenarian?

Filed By Alex Blaze | October 27, 2009 5:30 PM | comments

Filed in: Marriage Equality, Politics, The Movement
Tags: baker v. nelson, California, David Boies, equal protection clause, gay marriage, LGBT civil rights, loving v. virginia, marriage, perry v. scwarzeneggar, Prop. 8, rights, romer v. evans

While there are still major issues with the Perry vs. Schwarzeneggar case to overturn Prop 8 at the federal level, at least the case it turning out gems like this:

A federal judge said sponsors of California's ban on same-sex marriage may not delay in handing over campaign strategy documents to gay-rights groups that are looking for evidence of anti gay bias as they try to overturn the measure.

The sponsors had sought to keep the documents while challenging the order to turn them over in an appeals court.

But in a ruling late Friday, Chief U.S. District Judge Vaughn Walker of San Francisco said backers of Proposition 8 had failed to show that disclosing internal memos and e-mails would violate their freedom of speech or subject them to harassment.

Wait, they can't just claim that they're afraid of being disagreed with and keep all their political activity secret? Ya don't say!

And this one:

The lawyer, Charles J. Cooper, has studied the matter deeply, and his erudite briefs are steeped in history. He cannot have been blindsided by the question Judge Vaughn R. Walker asked him: What would be the harm of permitting gay men and lesbians to marry?

"Your honor, my answer is: I don't know," Mr. Cooper said. "I don't know."

Come on! You'd think he'd at least have some answer prepared for that question.

Then again:

In the courtroom, Mr. Cooper's arguments seemed to fall of their own weight. The government should be allowed to favor opposite-sex marriages, Mr. Cooper said, in order "to channel naturally procreative sexual activity between men and women into stable, enduring unions."

Judge Walker appeared puzzled. "The last marriage that I performed," the judge said, "involved a groom who was 95, and the bride was 83. I did not demand that they prove that they intended to engage in procreative activity. Now, was I missing something?"

Mr. Cooper said no.

"And I might say it was a very happy relationship," Judge Walker said.

"I rejoice to hear that," Mr. Cooper responded, returning to his theme that only procreation matters.

I'm still waiting for the right to actually deal with that question: if it really is all about procreation, then why don't we prevent straight couples who can't procreate from getting married? Usually they glaze over it, or say that the "elements of a procreative coupling" are in a marriage between two straight people who won't be having kids no matter how hard they try, but they don't seem to wrap their heads around how it completely contradicts their argument.

This is all good and fun with Vaughn Walker, who's seems to be fair when it comes to this case and not an outright homophobe. But, as the New York Times points out, he's not going to decide this case, if the Prop 8 opponents are to win, the Supreme Court will. And I don't think that we're at the point where we can debate where Justice Kennedy will be going on this one - the math right now (of course, no one has a crystal ball) seems to be a bit more lop-sided:

Still, it is one thing to persuade Judge Walker. The ultimate destination of Mr. Olson's suit is the Supreme Court, and it is hardly clear that he will be able to convince five justices to see things his way. Andrew Koppelman, a law professor at Northwestern and the author of "Same Sex, Different States: When Same-Sex Marriages Cross State Lines," said Mr. Olson would have trouble attracting votes from the current justices. Asked how many justices Mr. Olson could count on, Professor Koppelman said, "I have trouble getting to one."[...]

In a new book called "The Will of the People," Barry Friedman, a law professor at New York University, argued that the Supreme Court was quite responsive to public opinion in constitutional cases.

When the court found no constitutional problem with a Georgia law that made homosexual sex a crime in Bowers v. Hardwick in 1986, two-thirds of Americans supported such laws. By 2003, when the court overruled Bowers and struck down a similar law in Lawrence v. Texas, public support had dropped to about a third.

This was, Professor Friedman wrote, "a screamingly evident case of the court's running right along the tracks of public opinion."

Mr. Olson's problem, then, is that he may reach the Supreme Court too soon. Public support for same-sex marriage is gaining ground, particularly among younger people. But a majority of Americans remains opposed to the practice.

At the argument, Judge Walker seemed to share this concern. "Aren't you just getting ahead of yourself by asserting this claim under the federal constitutional provisions?" the judge asked.

Mr. Olson responded by comparing his case to Loving v. Virginia, the 1967 Supreme Court decision that held bans on interracial marriage to be unconstitutional. But 34 states permitted interracial marriage when Loving was decided. Only six states permit same-sex marriages.

The Loving decision, moreover, came almost two decades after the California Supreme Court struck down a state law banning interracial marriage in 1948 in Perez v. Sharp. The California Supreme Court's same-sex marriage decision is a little more than a year old, and it has been repudiated by the state's voters.

Just sayin', while we can all talk about how right the arguments are to overturn Prop 8, getting justices who generally reluctant to make the world topsy-turvy with their decisions, who range from far-right to center-left with several out-right homophobes in their companym to agree to the argument that same-sex marriage, the most unpopular of all the rights and legislation LGBT people are asking for, is a right protected by the Constitution is a tall order. But they're going ahead with it anyway, as they have a right to do.

Fortunately, as Nan Hunter posted a few weeks ago, the trial court judge rejected a motion to dismiss based on the idea that Baker v. Nelson is controlling precedent. Baker is a Minnesota Supreme Court case from 1972 that ruled that it's not discriminatory on the basis of sex to ban same-sex marriage, which is controlling precedent. And, to those who think a bad ruling from the Supreme Court won't do anything to hurt the movement, Baker, in all its kinda-sorta-controlling-precedent-ness and narrow-scope, was cited by the supreme courts of New York, Washington, Indiana, and Nebraska in their rulings against same-sex marriage.

It's isn't entirely accurate to compare this case to Loving, at least for predicting the outcome, since the country was in a very different place on that issue when the Supreme Court ultimately ruled that interracial marriage bans violated the 14th Amendment. (The ruling also cited the 14th Amendment's history with racial discrimation, which does not exist along the lines of sexual orientation, in its decision.)

And comparing it to Baker, in terms of substance, isn't accurate either since Baker challenged a same-sex marriage ban on the basis of sex discrimination, not anti-gay discrimination. So it makes sense that Walker rejected that claim.

Comparing it to the historic gay rights win in Romer v. Evans, which overturned a Colorado ballot initiative to ban cities from passing sexual orientation anti-discrimination legislation, isn't an accurate comparison either, since the Court held that the fundamental right being violated here was the right for LGB people to seek protection from their local governments, making it more about participation in the government than about anti-discrimination legislation.

Although the Court did say in its decision that the ballot initiative was "born of animosity toward the class that it affects," which is the information the Prop 8 opponents are looking for in the Yes Campaign's memos that Walker ordered released despite the Yes Campaign's protests that they weren't motivated by homophobia (I'm sure they'll find some great stuff. I wouldn't be surprised if it turns out that their internal discussions went so far as to talk about the "homosexual agenda," homosexuals taking over the government, child molestation, and "faggots" and "dykes." These people smile when facing the camera, but they can be ugly when they think no one is listening).

This is all interesting and academic, since the Supreme Court will ultimately decide if our side is to win. What can be established at the trial, though, is a large factual record that will influence the ultimate decision the Supreme Court makes. Thank goodness Walker saw through some of the arrogant turf war Olson and Boies were engaging in earlier this year and let the City of San Francisco work on the case with them and increase its scope. It's better to do this right instead of doing it fast, since no one should think that this will be easy.

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rapid butterfly | October 28, 2009 7:48 AM

good article, alex. I too have found that most of the people with whom I've spoken who oppose same sex marriages find their opposition seriously shaken when the issue of childless (either by choice or by biological fact, i.e., sterility, injury, etc) het couples is raised. A good number have come around; most of the rest hide in religious bigotry, but even that has the virtue of unmasking the real core of their opposition.

Robert Ganshorn Robert Ganshorn | October 28, 2009 11:02 AM

I can hear a groaning noise from dark holes of hatred from coast to coast. No it will not be easy, but we should remember that "Dred Scott" occurred before the 13th Amendment abolishing slavery eight years later. This was still when the world moved at the speed of a slow train.

Well done Alex.