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Prop. 8: Lawyer argues that marriage exists in society's interest so that men and women can procreate

In the second hour of the hearing on Prop. 8, the judges dug into the issue of whether the Constitution permits the state to make distinctions between same-sex and opposite-sex marriages.

Charles Cooper, who is arguing in favor of Prop. 8, argued that marriage exists for society to recognize relations between men and women that can lead to children.

"When a relationship between a man and a woman becomes a sexual one, society has a vital interest," Cooper said.

Judge Stephen Reinhart, one of a three-member panel of the U.S. 9th Circuit Court of Appeals hearing the case, appeared unconvinced.

"That sounds like a good argument for prohibiting divorce," he said, dryly. "But how does it relate to having two males or two females marry each other and have children as they have in California? I don’t understand how that argument says we ought to prohibit that?"

Judge N. Randy Smith raised another issue: Under California law, same-sex couples have all the rights of marriage except the word "marriage." Given that, he asked, how does Prop. 8 protect marriage?

Answered Cooper: "You are left with a word, but a word that is essentially the institution."


Must appellate court accept findings of fact by judge who overturned Prop. 8?

Issue of same-sex marriage may end up back in state court

If governor and attorney general don't defend gay-marriage law, who can?

-- Jessica Garrison

Comments () | Archives (28)

This is too funny. Since when did anyone need marriage as an excuse to procreate?

What about heteroxexual couples who choose to not have or can't have kids? Should they not be allowed to marry either, or maybe once they find out they can't have kids, should they be forced to divorce?

So, then, Mr. Cooper, you are arguing that Chief Justice John Roberts of the U.S. Supreme Court and his wife should be denied a marriage license. They have not procreated. Like some gay couples, they have adopted children. If this case reaches the U.S. Supreme Court, should Chief Justice Roberts recuse himself?

This has got to be the lamest argument of all, considering the US population has been steadily increasing. We have grown from 76 million in 1900 to 282 million in 2000.

"When a relationship between a man and a woman becomes a sexual one, society has a vital interest," Cooper said.

I'm sorry....what? Are you telling me when a male & a female elope, all of society wants a front-row seat? That seems immoral.

Tottally spurious argument. There are many heterosexual married couples who do not have children for whatever reason; does this argument mean that these are not valied marriages? What happens when couples with children divorce? What about all those wonderful people who have children outside marriage?
Procreation is a totally biological process. Period. Oh, wait, this lawyer must be a catholic...I distinctly remember in my high school religion clas being brainwashed that the purpose of marriage was to procreate children; and that the only 2 valid vocations for women were motherhood or nuns.

So if a heterosexual couple marry and choose not to have kids (I know plenty of them) then what does this mean for the "here for procreation" angle?

Fail logic on the part of the Prop 8 lawyer.

@Patrick -- an EXCELLENT question there, and a great point.

It's interesting how Prop 8 supporters have to fabricate reasons same-sex couples shouldn't be allowed to marry. If they were to state why they don't want gays to marry (it's against their biblical worldview), the trial would be over. You cannot withhold civil rights from people based on religious belief.

funny. I dont remember a requirement to procreate in my wedding vows? lets see, sickness & health, richer for poorer, have & hold... nope, nothing about procreating!

The absolute vapidness of Prop 8 is laid bare to see. Prop8ers want to reduce marriage down to a sex act. By their arguments, love seems to have little or nothing to do with marriage.

They don't have a case based on logic or reason. Animus toward gays is their only true motivation.

"Marriage" is a word defined by dictionary and long usage. What power does a legislature have to create new definitions?

Human relationships are what they are, and legislatures may be able to enact laws that affect those relationships, but the definition of marriage should not be a matter of legislation.

Marriage is a procreation contract. Men cannot imprgnante men, nor are women capable of impregnating other women. A simple concept of marriage is the ability of the parties to consumate the marriage, which strangely enough, requires a male and a female heterosexual union. The other fine point is that a paterity test is available in the first 2 years regarding a child of the marriage, so if the child is the result of contract, then someone in the marriage is not genetically related and has a 2 year free trial child, with no possible child support issues, if contested within 2 years--a simple concept that is not available to heterosexuals who do not have sex outside of the marriage.

wait, WUT? LOLz. "that marriage exists for society to recognize relations between men and women that can lead to children..." In a realigious context, sure. But for everyone else? You fail at Law...

That's such a ridiculous argument. So I guess elderly couples who already have grown children and where the woman had gone through menopause should not be legally allowed to marry because they cannot procreate? Essentially, Mr. Cooper's argument is lacking. Absolutely, heterosexual couples do get married to have children. But there are heterosexual couples who cannot have children due to age, medical problems, etc, who marry. What is the point of their marriage?

Also, people don't need marriage to procreate. And people don't need to procreate to be married. The two are not mutually exclusive.

So, I guess Prop 8 supporters are against your grandma getting remarried (e.g. post menopausal women).

LOLOLOLOL- All the queers making their arguments... So what? Its UNNATURAL and PERVERTED. get a clue...

Many people do wait until marriage to have kids. The commenters here should not think their exception is the rule. The state should expect the best situation for kids with is married parents.

Many women do hold off on having kids until marriage. This is a fact.

What a pathetically hollow - and historically sloppy - argument.

So basiclly what's being said here is that the marriage between my grandparents that was a 57 year marriage is null and void because my grndmother was unable to have biological children and thus adopted 4 very needing children. But on the same token, same sex marriage should be allowed because it can still "lead to children" . I mean seragosy and donors still exist. Not to mention the hundreds of thousands of parentless children needing adoption for what ever reason. I think this lawyer needs to go back to school... he obviously missed the course on meaningful argument skills.

What a weak argument. I know many couples (male and female) who marry and do not, by choice, have children. Come up with something better because right now it looks like Prop 8 is going to be overturned, as it should have never been on the ballot.

There is so much more than “promote standard procreation”. Traditional marriage promotes that, and possibly experimenting with a redefinition of “marriage” might erode traditional marriage. Arguably there could be rational basis to not redefine. But also, hewing to traditional marriage promotes a lifestyle that has long become part of it. This lifestyle, the Ozzie and Harriet one if you will, promotes or involves daddy working hard, mommy caring for kids, and happy families supporting the American economy in predictable, acceptable ways. To change Ozzie-marriage threatens to undermine a bundle of American goodness, adding new, harsh, spice to apple pie. Western marriage gives incentive to young men–potential criminals and mischief makers–to “go straight”, get a job, a wife, a life. Western marriage helps keeps young men off the streets. It may be one key to the success of Western Europe over the past five hundred years–if we still call that success. It is true that easy divorce undermined marriage; crime rose, just as the foregoing theory suggests it would. Then AIDs fears came, brought less promiscuity, and crime declined. People, including the lawyers arguing, are not seeing traditional marriage for all that it is. That said, this author is against Prop 8; there may be rational basis for wanting to hold onto what ya got, but it ain’t worth the price; trad marriage is long lookin’ real ragged; update it.

Anyone trying to argue that homosexual behavior is unnatural have obviously never heard of gay penguins, dolphins, giraffes, flamingos, gulls, bisexual aphids, at least 27 species of lesbian lizards THAT DON'T NEED A MALE TO REPRODUCE, transgender frogs, fish, lizards, and insects.

Sounds pretty natural to me.

Just because we tell our children to wait until they're married to have sex and children (or at least people used to) does not mean that marriage exists in itself for two people to procreate. I cannot have children, my husband and I knew that I couldn't have children when we decided to marry. It looks to me like the supporters of prop 8 are grasping at straws because they can't argue to the Supreme Court their real views based on religion. Hell, they may have had more luck basing their argument on religion. We've elected the dumbest president of recent history just because he kept throwing the God and Christian thing around. If gay people want to get married, I say let them do it. They're not hurting anyone, and they should have all the rights that every heterosexual person has.

Why on earth would any sane gay person want to participate in a religious ritual invented by the very churches that would deny their basic human rights? Let the churches keep their "marriage". As long as civil unions have the same legal status - basically a civil contract between two or more consenting adults - who cares?

Besides, even granting the religious wackos' absurd premise, that gay unions somehow negatively impact the sexual habits of heterosexuals, it seems like this might be a good thing, what with a world population nearing 7 billion and massive resource shortages looming. I really don't see us going extinct from teh ghey any time soon.

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