In Marriage Debate, Both Sides Agree on One Thing
In the just-completed oral arguments made before the nine justices of the U.S. Supreme Court, both conservative and liberal, pro- and anti-marriage equality pundits, activists and everyone else are agreed on one point, at least: the lawyer making the case for traditional marriage was badly outgunned by his opponents.
Rather than making the case for retaining Proposition 8, Charles Cooper botched it. When he was asked why the plaintiffs had standing, he punted. This is a vital procedural question, because, if the justices don’t believe that the people who are challenging the unanimous rulings of every court so far, then that would be an easy out for the more conservative justices effectively to overturn Proposition 8 by letting the rulings stand without actually saying they approved of what that means about marriage equality.
If that happens, the 2008 referendum denying marriage to same-sex couples in California would be stricken from the books. Since there are couples legally recognized because they made the narrow window between the first court ruling and the closing of the gate, it would be extended to all.
Cooper could not show why the plaintiffs had a direct interest in denying marriage to someone unknown to them personally. While it’s true that this would have been difficult to prove for any lawyer, Cooper did an especially bad job.
To take just one other outstanding example, for his main argument for restricting marriage, he resorted to procreation. Marriage, he said, was an institution devised to encourage procreation. Since same-sex couples cannot procreate by themselves, therefore they are not entitled to it.
One would think that, even if Cooper doesn’t have the inherent ratiocinative abilities to follow his logic through to its obviously ridiculous conclusions, he might at least have read some of the thousands and thousands of comments made by people on message boards all over the Internet.
If he had, he would have read the arguments put forward so many times. Marriage, of course, has never been merely or even primarily for procreative purposes. Men and women have always done quite well procreating without sanction of marriage. Like their counterparts, same-sex couples can adopt or use a surrogate or a donor.
The lawyers for the other side didn’t even have to bother to made the the most obvious counter-argument: The justices themselves did it for them. Justice Kagan asked whether, in that case, male-female couples well past child-bearing age should not be allowed to get married.