Live Blog Archive
Chuck Cooper Opens the Afternoon
Chuck Cooper: NY Court of Appeals recognized that marriage could only be recognized as opposite sex. When Massachusetts ruled for same-sex marriage, it recognized its ruling changed the definition of marriage understood in common law and in other states. California “from the beginning of statehood” understood marriage to be a relationship between a man and a woman.
Question: Why has marriage been so defined so universally? It is because marriage serves a societal purpose that is equally ubiquitous. A purpose that makes marriage “fundamental to the very existence and survival of the human race.”
The historical record leaves no doubt, none whatever, that the central purpose is to channel potentially procreative unions in to enduring stable unions, to increase the likelihood that any offspring will be raised by the man and woman who brought them into the world.
Olson often quotes “marriage creates the most important relationship in life.” In the very same sentence in Maynard, it says marriage has more to do with the morals than any other relation.
Court’s specific holding is that contract law does not restrict marriage law, because marriage alone partakes of an institution regulated and controlled by public authority for the benefit of the community and it explained why the institution.
Walker: Do people get married to benefit the community? People don’t enter into marriage to say “oh I’m going to benefit society” what you think is: I’m going to have a life partner, someone I can share my life with. Is the purpose of marriage for individuals to benefit society?
Cooper: From the standpoint of the state’s interest and society’s interest, this is an institution imbued with social meaning and social . . . That’s why the state has an interest in it. Individuals aren’t necessarily doing it to benefit the community, although that is the ultimate result, the question is why does the government regulate this relationship, why is it different than the . . .
Walker: Why does the state regulate it? Why doesn’t he leave it up to private contract?
Cooper: Because the marriage relationship is fundamental to the survival and existence of the human race. Without the marital relationship, society would come to an end. (Prop 8 opponents titter and laugh)
Walker: Why can’t the state say marriage is entirely a matter of private contract? We aren’t going to issue licenses or set down laws, we are simply going to say you enter into a contract and if you do, we will enforce those contracts just like the state will enforce any other form of contract. Why does marriage have a large role?
Cooper: Why hasn’t any society done what you say? Why has every state in virtually every country indeed regulated this relationship? This relationship is crucial to the public interest because your honor the procreative sexual relations both is an enormous benefit and it represents a very real threat to society’s interest.
Walker: Threat?
Cooper: Yes a threat to the extent that children are born without this stable enduring marital union, responsibility by both parents who brought the into the world, a host of very important and negative implications arise, and potential social consequences arise. We know from all the authorities the purpose of marriage is to provide society’s approval to that sexual relationship and to the production of children as Steven said in his dissent, marriage is a license to cohabit and to produce legitimate children.
Walker: State doesn’t withhold license from people who can’t procreate. Are you suggesting the state should?
Cooper: No, it is not a necessary requirement to fulfilling the state’s interest in naturally potentially procreative state relationships.
Walker: Then the state must have some interest apart from procreation.
Cooper: It rationally furthers the states’ interest to attempt to channel into the marital union, all potentially procreative relationships, as well as all male-female relationships. It furthers the state’s interest and it isn’t a necessary requirement that the state insist as a condition of marriage that individuals who get married have children, be able to have children. Your honor case after case has agreed that the simple fact that all societies and all states haven’t required procreation of marital couples in no way eliminates or detracts the procreative purpose of marriage.
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