Opinion, Berkeley Blogs

Judge Walker rules Proposition 8 unconstitutional

By Rosemary Joyce

As reported by the San Jose Mercury News, Judge Walker concluded that

"Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians," the judge wrote. "The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite sex couples".

The argument those in favor of Proposition 8 presented during the trial was, obviously, not legally compelling. But it is of some cultural interest:

Prop. 8 defenders tried to introduce evidence to show that gay marriage would undermine the institution of marriage, and that it conflicts with marriage's central purpose of procreation.

Indeed, Prop. 8 lead attorney Charles Cooper told the judge in closing arguments in June that marriage between heterosexual couples is "fundamental to the survival of the human race."

What is interesting here from a historical and cultural perspective is the claim that "marriage's central purpose of procreation" is threatened if the persons in the marriage are not a man and a woman. Presumably, the intended implication is that procreation in marriage is always a function of the union of that man and that woman. But that raises questions about families with adopted children, and about married couples without children. Where do they fit in this either/or logic?

Anthropologists who have written about American kinship have long noted a tendency in US society to equate kinship with blood identity. Yet at the same time, in US society, adopted children are not supposed to be differentiated from children born of the biological union of their parents. Both today and historically, children have been incorporated in families through a variety of means. The idea that biological kinship is more authentic than kinship through fostering, feeding, care, and history would be offensive to many, I would hope most, people in the US today.

In the closing argument quoted above, attorney Cooper merges marriage -- a social and political relationship, in some cultures and societies also a religious one -- with reproduction, a biological process.

Biological reproduction is fundamental to the persistence of a species. But allowing the legal and economic relationship that in contemporary US society is signified by state-registered marriage to take place between people who are not able together to produce biological offspring is hardly endangering all biological reproduction.

If the argument made were accurate, then what should we make of heterosexual couples in marriages that do not produce children -- either by choice or by biological incapacity?

Judge Walker, in his "Findings of Fact" in the case, underlines this point:

21. California, like every other state, has never required that individuals entering a marriage be willing or able to procreate.

a. Cal Fam Code § 300 et seq;

b. In re Marriage Cases, 183 P3d 384, 431 (Cal 2008) (“This contention [that marriage is limited to opposite-sex couples because only a man and a woman can produce United States District Court For the Northern District of California children biologically related to both] is fundamentally flawed[.]”);

c. Lawrence v Texas, 539 US 558, 604-05 (2003) (Scalia, J, dissenting) (“If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct * * * what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.”);

d. Tr 222:22-223:22 (Cott: “There has never been a requirement that a couple produce children in order to have a valid marriage. Of course, people beyond procreative age have always been allowed to marry. * * * [P]rocreative ability has never been a qualification for marriage.”).

Civil marriage is a legal relationship, that brings with it legal rights. And in California, that legal relationship is now, once again, open to everyone who sees it as valuable. That should, in fact, strengthen the institution by allowing more people to engage in it.