Opinion
Guest Commentary: Decision pending on future of marriage
June 23rd, 2010
By William B. May
The message delivered to Federal District Judge Vaughn Walker by Prop 8 proponents during the closing arguments at the trial to redefine marriage in San Francisco was clear. The voters have overwhelming authority and rational reasons for defining marriage between a man and a woman. The voters’ decision to pass Prop 8 cannot be overturned unless the plaintiffs negate every single claim of state interest for promoting the uniquely pervasive institution that channels procreative activity into a stable relationship.
Judge Walker noticeably stiffened in his chair as Charles Cooper, lead counsel for the defense, further stated that even if he concludes that every claim made by the plaintiffs is true, he could still not rule against Prop 8 unless he found that all of the rational reasons for protecting marriage were false. “It is a judicial tsunami they are asking you to sail into.”
Plaintiffs’ counsel claimed that people who voted for Prop 8 could only have done so “through irrational or dark motive, some animus, some kind of bigotry.” After citing myriad U.S. Supreme Court cases going back to the late 1800’s that affirmed the public interest in marriage, Cooper responded by telling the judge that the plaintiffs’ charge was “a slur on 7 million Californians It’s a slur on 70 of 108 judges who have upheld as constitutional and rational the decision of voters and legislatures to preserve the traditional definition of marriage.”
At the end of his argument, Cooper took the opportunity to urge the judge to let the debate on marriage continue by upholding Prop 8. Cooper’s words were more significant than one might imagine, because if Prop 8 had failed, – or if the judge decides to overturn it and his decision is upheld –, it would be legally discriminatory to even argue that marriage between a man and a woman has a higher value to society than same-sex relationships.
Former U.S. Solicitor General Ted Olsen, the attorney who presented the closing arguments for the plaintiffs, argued that procreation has never been a condition for marriage and therefore it cannot be about procreation. There is much procreation taking place outside of marriage as fewer people are getting married and more people are cohabitating. Marriage has changed over the last 30 years, he claimed, and is breaking down on its own attempting to demonstrate that it could not be adversely affected by permitting gays and lesbians to marry.
Olsen tried to equate restrictions on same-sex “marriage” to attacks on the dignity of blacks in past marriage laws, and a contention contended that withdrawing same-sex “marriage” rights contributes to stigmatizing gays. He referred to the fact that 18,000 same sex couples married during the period from May 2008, when the California Supreme Court struck down the Defense of Marriage Act passed by the voters in 2000, to the date of passage of Prop 8 that November.
Olsen misrepresented court decisions striking down interracial marriage barriers as a redefinition of marriage to bar racial discrimination against adults in loving relationships. Cooper, on the other hand, pointed out that the right to marry in those cases assumed marriage between men and women as the justices pointed out was “fundamental to the existence and survival of the human race.” He noted that these restrictions “grew out of . . . white supremacist theory,” meaning these laws were about eugenics – racial purity and the procreative nature of relationships between men and women.
Olson also pointed to Romer v. Evans, a Colorado case on an initiative amending the state constitution to ban all legislation at any level of government that would provide any protections against discrimination based on sexual orientation. The U.S. Supreme Court found that there was no rational reason to adopt something so broad and overturned it on that basis. Cooper pointed out that is not the case in California. Prop 8 is very narrow and there are clear reasons for retaining the traditional definition of marriage, which the plaintiffs have not refuted.
Cooper further cited a New York Court of Appeals case upholding marriage and the Lofton v Florida upholding a ban on gay adoptions by the 11th U.S. Circuit Court of Appeals. Both courts cited common sense alone as being sufficient as rational reasons for adopting the laws. No one knows how long it will take Judge Walker to arrive at a decision. It could be a couple of weeks or it could be several months. There is no deadline.
As a closing note, conversations between attorneys and the judge highlighted the great amount of confusion there is about what marriage is, and its relationship to children and parenting.
The debate is complicated by many factors, among which are the promotion of alternative families in which being deprived of mothers or fathers is considered normal, redefinition of motherhood and fatherhood as roles rather than biological realities, artificial means of procreation through IVF, and children unwittingly being reduced to objects for adult fulfillment rather than gifts of equal dignity. The fight to protect and promote marriage between a man and a woman cannot be divorced from these factors.
William B. May is Chairman of Catholics for the Common Good. Visit www.ccgaction.org.
From June 25, 2010 issue of Catholic San Francisco.
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