American Foundation for Equal Rights

Baltimore Sun: The right to marry

Do gay men and lesbians have a constitutional right to marry? That’s the question before California’s U.S. District Court in San Francisco, where a judge heard closing arguments this week in the case of two same-sex couples who sued to overturn the state’s Proposition 8, which defines marriage as a union between a man and a woman. But there was no question the exchange before the bench pointed up the weaknesses of the case against marriage equality.

The main argument by lawyers defending the law — that the primary purpose of marriage is reproduction and child-rearing — faced tough questioning by Judge Vaughn R. Walker, who repeatedly asked why there were no similar rules prohibiting marriage between people who cannot or choose not to have children. Defense attorney Charles J. Cooper could only reply that “the marital relation is fundamental to the existence and survival of the race” and that “without the marital relationship, society would come to an end.”

Judge Walker seemed equally skeptical of Mr. Cooper’s second line of argument, that marriage serves a beneficial social purpose and that extending it to same-sex couples would weaken its importance. “Do people get married to benefit the community?” he asked. “When one enters into a marriage, do you say, ‘Oh boy, I’m going to benefit society’?” The judge then pressed Mr. Cooper for hard evidence that allowing gays to marry would hurt traditional heterosexual marriages.

The plaintiffs’ attorneys, Theodore Olson and David Boies, argued that banning same-sex marriages denied gays and lesbians the rights to equal protection due process under the Constitution. “This case is about marriage and equality: the fundamental right to marry has been taken away from plaintiffs,” Mr. Olson told the court. “Their state has rewritten its Constitution in order to place them in a special disfavored category” that rendered their relationship “not valid, not recognized and second-rate.” He called the ability to marry a basic human right, not “an indulgence to be dispensed” by the state. And he reminded the court of past Supreme Court rulings striking down state bans on interracial marriage and of the long history of slavery that denied black couples the legal right to marry.

Read the full piece here.