Cooper begins, right away asserting:
"The New York Court of Appeals, your Honor, observed in 2006 that until quite recently it was an accepted truth for almost everyone who ever lived in any society in which marriage existed that there could be marriage only between participants of different sex."
That is, marriage is between a man and a woman because only a man and a woman can get married, the oft-used circular "marriage defense" argument that, you will notice, does not address the question of whether or not a ban on same-sex marriage is constitutional or even a good idea. He continues, arguing that the above statement demonstrates that:
"[T]he central purpose of marriage in virtually all societies and at all times has been to channel potentially procreative sexual relationships into enduring stable unions to increase the likelihood that any offspring will be raised by the man and woman who brought them into the world."
This argument is what's sometimes called the Responsible Procreation argument against same-sex marriage, and it is addressed more fully in this article, which explains the mythological nature of this argument. Although Cooper's version idealizes this alleged purpose of marriage, many adherents of this theory of marriage contend that marriage exists to channel the inherently-promiscuous male sex drive into marriage, effectively entrapping them into rearing any resulting biological children. In other words, same-sex marriage should be illegal because men are horny sluts, effectively punishing women (whose job it is to "control" men) and LGBT people for men's "inherent inability" to take responsibility for their sex lives.
Nonetheless, you will notice that the Responsible Procreation claim, while being annoyingly male-centric, is not necessarily Bible-based or gender complementarist. That prominent "marriage defenders" no longer even consider outright "Judeo-Christian" homobigotry, sexism, and misogyny to be legally viable arguments is progress, to look on the bright side.
Moving on, the Responsible Procreation claim is likely to be a significant issue in Judge Walker's opinion given that (a) this benign-sounding message was a far cry from the Save the Children From The Idea That Gay Is Normal fear-mongering narrative that "marriage defenders" engaged in leading up to the Prop 8 vote, a narrative that demonstrated a measure motivated by animus rather than concerns about Responsible Procreation and (b) marriage laws are under-inclusive if they prohibit same-sex couples to marry while allowing post-menopausal women, women who have gotten hysterectomies, men who do not have testicals, and infertile couples from marriage, if we accept as true that the Most Important Purpose of marriage is procreation.
For instance, a bit later, Judge Walker asks Cooper if he would suggest that the state withhold marriage licenses from couples unable to reproduce together, given that a premise of his argument is that couples who cannot reproduce together do not fulfill the procreative purpose of marriage and are, therefore, unfit for marriage. Contradicting himself, Cooper engages in special pleading, saying that witholding marriage licenses from the infertile "is by no means a necessary - a necessary condition or a necessary requirement to fulfilling the state's interests in naturally potentially procreative sexual relationships." That is, same-sex couples cannot marry precisely because they do not fulfill "the procreative purpose" of marriage; but heterosexual infertile couples can marry even though they too do not fulfill "the procreative purpose" of marriage?
Addressing this issue more thoroughly than most, Cooper claims that testing all heterosexual couples for infertility would be impractical. And here I disagree. In some cases, yes. But in others, not so much. Not all women have uteruses; not all men have testicles. Testing these couples for "infertility" would be fairly easy and practical. As for other couples, another solution that would help "fulfill the procreative purpose of marriage" would be to withhold the marriage license until a couple "naturally produces" children. And, yes, as Cooper states, there would also have to be post-marriage enforcement ensuring that children were actually produced, which doesn't seem too steep a price to pay to ensure this Most Important Institution continues to do its important job of ensuring the survival of the human race (which Cooper claims is another important purpose of marriage, below). Alternatively, it would be refreshing if Cooper would just acknowledge that, as his expert Blankenhorn admitted in his book: there exists no one single, universal definition of marriage. It means different things to different people. Why is this hard for people to understand? While to some marriage is about procreation, to others it is about solidifying bonds, social acceptance, romance, or something else entirely.
In light of the fact that same-sex marriage bans are underinclusive and, therefore irrational when it comes to supporting the alleged purpose of marriage, an easy and practical solution would be to just allow same-sex couples to marry already. Really, I am so fucking sick of the premise that marriage must be saved on the backs of LGBT families and that the steps that heterosexuals find to be too hard, too "impractical," or too invasive to their privacy are, as Cooper claims, "Orwellian" steps to save marriage. If you're going to exclude people from your special institution, you have to fucking own it all the way, not just when it's cheap and easy like punching a chad in the voting booth to take away other people's rights. Put up or STFU.
And furthermore, if marriage is about procreation, then in the interest of accuracy and fairness we must de-link every single right, privilege, and benefit that comes with marriage that is not related to procreation. As Judge Walker noted: "There are support obligations and there are a host of other obligations that flow from a marriage that have nothing to do with the sexual conduct of the parties to the marriage." I'm sure Cooper and the "marriage defense" brigade would have no objections to such a proposal, given how invested they are in Marriage As Procreation. We can't have our legal system sending mixed-messages, can we?
When further pressed by Judge Walker to answer whether marriage exists for the individuals within it or to benefit the community, Cooper continues, ominously claiming that "without the marital relationship, your Honor, society would come to an end." As though (a) human beings are incapable of reproducing without a marriage license in hand, and (b) heterosexuals will stop marrying and reproducing if same-sex marriages were allowed. Oogedy boogedy!
Like a broken record, Cooper continually skips back to his argument "that responsible procreation is really at the heart of society's interest in regulating marriage." About halfway through his closing statements, Judge Walker pressed Cooper to show what evidence supported this conclusion and, incredibly, Cooper replied "You don't have to have evidence of this
point if one court after another has recognized -- let me turn to the California cases on this." You don't have to have evidence?!
And isn't that bold assertion, really, the crux of the monopoly that "marriage defenders" believe they have on marriage? While he is correct that some court cases and legal scholars, particularly those in the 1800s, say that a purpose of marriage is procreation, it is also correct that other court cases say that marriage is about other things as well and that it is a fundamental right even to those who are incapable of procreating with the person they wish to marry. Yet, Cooper takes it as an Authoritative Statement of Commonsensical Truth that his definition/purpose of marriage is the One True Version. He ignores the plethora of evidence that the equality side presented, evidence that was submitted by actual scholars of history and sociology. Instead, he claims that he doesn't "have to have evidence" regarding the single most important claim of his case.
Interesting tactic.
Judge Walker agreed, observing:
"Let me ask: If you have got 7 million Californians who took this position [of being against same-sex marriage], 70 judges, as you pointed out, and this long history that you have described, why in this case did you present but one witness on this subject? One witness. You had a lot to choose from if you had that many people behind you. Why only one witness? And I think it fair to say that his testimony was equivocal in some respects."
He is referring here, of course, to Cooper's key witness David Blankenhorn, whose testimony and status as an expert appeared rather... flaccid compared to that presented by equality side's witnesses. In his rebuttal to Cooper's closing, Ted Olson harped on this point some more, summing up the "marriage defense" position as "We don't know. We don't have to prove anything. We don't have any evidence." And that, really, is the frustrating annoyance to anyone who has ever dealt with these people. How is it acceptable to take away or deny rights while simultaneously admitting that you don't know what'll happen if you grant these rights?
Tomorrow, I will conclude this series by discussing the standard of review issue.
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