June 16, 2010

Column #1,503

Federal Court Case on Same-Sex Marriage

By Mike McManus

                The reconsideration of California’s Proposition 8 is a miscarriage of justice. 

                First, the people have already spoken.  By a vote of 6.3 million to 5.8 million in 2008, Californians voted in favor of Prop 8’s ban of same-sex marriage, even though Barack Obama won the state on that same day by an unprecedented 24 point margin. 

                Yet a single judge, Chief U.S. Judge Vaughn Walker, heard final arguments Wednesday to overturn the vote of millions.

                How dare he do so?  Judge Walker is an open homosexual.  Had he been an honorable judge, he would have recused himself.

                Closing arguments were heard Wednesday in what was the first trial of the issue in a federal court.  A decision will not be announced for weeks, but both sides predict the case will be appealed, probably all the way to the U.S. Supreme Court.

                Press coverage has been biased toward the same-sex marriage side of the case since it was announced that the two lawyers representing gay and lesbian couples would be the two attorneys from opposite sides of the political spectrum – Theodore Olson and David Boies who battled one another in the Supreme Court case, Bush v. Gore, which decided the outcome of the 2000 election.

                CNN’s story on Wednesday night featured only the “politically odd couple” of Bois and Olson. The attorney in favor of keeping Prop 8 was not mentioned or given air time.

                In his final argument, Olson said, “We conclude this trial, your honor, where we began. This case is about marriage and equality.  The fundamental constitutional right to marry has been taken away from the plaintiffs and tens of thousands of similarly-situated Californians. Their state has rewritten its Constitution in order to place them in a special disfavored category.”

                After California’s highest court declared gay marriage to be constitutional June 6, 2008, there were 18,000 marriages by gay and lesbian couples until Prop 8 reversed the ruling.

                Olson played video tapes of testimony from both the gay and lesbian couples who are plaintiffs. Sandra Stiers, 47, said “I would feel more secure. I would feel more accepted. I would feel more pride. I would feel less like I had to protect my kids,” if she could marry her partner.

                Charles Cooper, who represented ProtectMarriage.com, argued that “The historical record leaves no doubt…that the central purpose of marriage in all societies at virtually all times is to channel procreative relationships into stable relationships to ensure that offspring…are raised in those stable relationships.

 “The marital relationship is fundamental to the existence and survival of the race,” he said. “The purpose of marriage is to provide society’s approval to that sexual relationship and to the actual production of children…Without the marital relationship, your honor, society would come to an end.”

Judge Walker was skeptical, asking for hard evidence of that claim, noting that there are no rules prohibiting marriage between people who cannot have children. He proposed that marriage was more about building a joint future or sharing in life than procreating.

                 Cooper disagreed, arguing that marriage is designed to discourage “irresponsible procreation,” which does not apply to gay couples who can only have a child if a third person is involved.

                Olson asserted that marriage “is the right of individuals, not an indulgence to be dispensed by the state.  The right to marry, to choose to marry, has never been tied to procreation.”

                Cooper’s emphasis on procreation neglected other more persuasive arguments.

                What he should have said is that “Gays are not really interested in marriage.  In Massachusetts where same-sex marriage has been in place for five years, only 4,000 gay couples have married (plus 8,000 lesbian ones).  If gays are 3 percent of the population, that would be 96,000 people, only 8 percent of whom have married. 

                Why should a tiny fraction of 6.5 million people have the right to change a law that is designed to give children a married mother and father, the best environment in which to grow? 

                Secondly, most gay marriages are “open marriages,” in which both partners have sexual relationships with others.  Marital fidelity is the cement of genuine marriage, a commitment that is central to marriage as an institution. Gay marriage would erode that core value.

                 If this case is ultimately decided by the Supreme Court, it could overturn the laws of 45 states, 30 of which have put the issue into state constitutions.