Prop 8 Coverage at LATimes.com

The LATimes.com breaking local news blog has extensive coverage of the current Prop 8 trial. Constitutional defenders who value both men and women are referred to as "anti-gay marriage". Biased, much?

In this entry, Barry P. McDonald, a professor at the Pepperdine School of Law, makes a point that is reinforced elsewhere – by having our Domestic Partnerships law, we have allowed a Trojan Horse to threaten marriage. That's what we get for trying to be nice.

It also looks like the California Supreme Court may yet have a role to play.

Marriage neutering proponent Erwin Chemerinsky, dean of the UC Irvine School of Law, discusses the issue of who has standing to defend the state constitution, which once again illustrates what a horrible disservice Governor Schwarznegger and Attorney General Jerry Brown have done by abdicating their obligations.

If there is a lack of precedent to allow Prop 8 proponents to defend the amendment in federal court, wouldn't that be because it is unprecedented for a voter-approved amendment to be abandoned by the Governor and Attorney General when it is attacked in a federal court?

[Much, much more after the jump.]

In this update from Jessica Garrison, we read:

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.

That is what so many people miss – the argument is not that all marriages will lead to children (though most do), it is that the pairing of a man and a woman is the only kind that can naturally do so; therefore, it is objectively different from other kinds of associations.

Again, with this analysis by Courtney G. Joslin, acting professor of law at the UC Davis School of Law, we see the Trojan Horse:

Specifically, Judge Smith pointed out that even after Prop. 8 was approved by the voters, California law still extended to lesbian and gay couples all of the state-conferred rights and obligations of marriage, including all of the parentage and child-related protections. That being the case, he suggested, it is difficult to see how Prop. 8 rationally furthers any interests related to the protection and well-being of children. Later in the hearing, Judge Smith suggested that same-sex marriage bans in states that, unlike the state of California, do not encourage and facilitate same-sex parent families might be more likely to survive constitutional review.

The way having a separate word to describe marriage protects children is illustrated in the very reason why marriage neutering advocates are not satisfied with California's Domestic Partnerships – it sets apart the bride+groom relationship as different. If marriage is not about the possibility of internal procreation, then it can't be about children. If marriage is not about children, nobody should bother to get married to raise children. If marriage is only about feelings, then people should not try to work out problems or disagreements in their marriage.

Karin Klein checks in on the trial on the LATimes.com opinion blog.

All three judges have been pressing Charles Cooper, the lawyer arguing to keep Proposition 8 intact, to articulate the rational basis for the ban on same-sex marriage.

It's not a ban. But why should the California Marriage Amendment stand? Because a federal judge erred in intruding into a duly adopted state constitution, because it is Constitutional for laws to treat different kinds of associations differently.

If domestic partnerships have all the same rights as marriage in California, what's the relevance of all this argument about the ability of heterosexual couples to procreate?

The ability to naturally procreate is why the state has an interest in licensing marriage that it doesn't have with other kinds of associations.

If same-sex couples have the right to adopt children or have them through the help of a third party of the opposite sex, along with the ability to form lifelong loving relationships with legal recognition of rights to inherit and make medical decisions, what is the rational basis for denying them a word?

Existing wrongs should not obligate us to adopt further wrong. Make no mistake about it, intentionally conceiving a child into a situation where they will be deprived of a mother or a father is wrong. I would love it if we recognized in our laws that children have a general right to a mother and a father that not only protects marriage, but also denies unmarried people access to reproductive technologies. But we have to deal with the situation at hand.

She's bothered by the phrase, "responsible procreation".

It's always teeth-gritting time when the debate over same-sex marriage turns to the words "responsible procreation," a phrase that I used to think meant not having children without the ability and commitment to care for them well. It was about pureed peas, not whether your relationship was with a person of the same or opposite gender.

A child needs both a mother and a father, So said Nature, or Nature’s God. Take your pick.

Yet, as illogical as the argument about procreation always seems, it of course came up again Monday in the U.S. 9th Circuit Court of Appeals as the defenders of Proposition 8 sought to argue that society has a valid basis for regulating which adults can marry because marriage exists for the purpose of responsible procreation and the rearing of children by their biological parents.

All unmarried adults can marry.

If that's the purpose, why on earth do we let people marry who have no interest in having children?

It's called the Right to Privacy and Reproductive Rights. I'm sure you're familiar with those concepts. Whether someone is sterile or intends to procreate is a private matter. Sex (male, female) is on someone's government-issued birth certificate. We know two males or two females won't be making babies by themselves.

Why do we let people who aren't ready for responsible child-rearing give up their children for adoption, and why do we let couples who have all the desire and ability for children adopt them, and why do we let inattentive parents get married?

The first two is, ideally, to let a bride+groom couple adopt and raise the children. The last is because we have freedoms and we give parents the benefit of the doubt, taking away children only when they demonstrate they are unfit parents.

"Mitchell Young" at December 06, 2010 at 03:18 PM explains it:

The law makes arbitrary distinctions all the time which may been unjust for outlying cases.

I would not call the distinction between males and females arbitrary, but I understand where he is going.

There are sixteen year olds out there who could purchase and consume alcohol with no adverse affects to themselves or society, yet we insist on the 21 year age limit. There are people who could snort coke after work every night and still be productive members of society, but we totally outlaw that drug. Arbitrariness is inherent in law.

With real marriage of any sort, at least the form is preserved, even in the case of the elderly. And being that it is congruent in form, even the marriage of the elderly reinforces the importance of a societal institution that is primarily for channeling sexual energy in a way that reproduces the society. (But let's face it, a marriage of potentially fertile people is much more celebrated even by family and friends). Unlike any of the cases mentioned. A homosexual union totally negates the biological aspect of marriage.

And I can't be the only one who knows, personally, couples who weren't interested in children who found themselves with one or more, to their great delight in the long run. That can *only* happen in a real marriage.