Live Blog Archive
Procreation and rational basis, cont.
Cooper: What does rational basis mean? "Core distinguishing difference related to the public purpose justifies on a rational basis maintaining the historic definition of marriage.”
Walker: You heard Mr. Olson this morning recounting the Loving decision in 1967. Up to that time, numerous states had laws on the states prohibiting interracial marriage. At some point there came the same kind of social change you just described with respect to homosexuality. In 1967, that matured into a constitutional recognition of a constitutional right, that the limitation against interracial marriage violated a fundamental right. Why are we not at that same tipping point here with respect to same-sex something or another?
Cooper: Several reasons. The most important is this: What legitimate purpose of marriage recognized historically or anywhere else provided a rational business for the state of Virgnia to say that an interracial couple could not get married? It certainly wasn’t the core procreative purpose, because that purpose was frustrated by those policies, that purpose was at war with the overriding ubiquitious core procreative purpose of marriage because it required people who interracial couples . . .
Walker: But you recall a number of decisions that upheld those laws was that the mixing of the races was going to be destructive. Would have serious corrosive effects on society.
Cooper: Those racist sentiments and policies had no foundation in historical purpose of marriage and in fact again were at war with it. Racial restrictions on marriage were not part of the common law. As we maintained from the beginning, the opposite-sex nature of marriage is definitional, as the Supreme Court has often recognized because this relationship is fundamental to the existence and survival of the human race. The opposite sex nature of marriage has always been definitional. The common law did not place restrictions on marriage; many states did not place racial restrictions on marriage -- they grew out of this very particular racist white supremacist theory that was at war with the legitimate purposes of marriage. They actually made people have illegitimate natural children.
Racial restrictions were at war with its very definition.
Second point I want to make, these restrictions.
Walker interrupts: Why isn’t the limitation on marriage to gay couples, lesbian couples similarly at war with their desire to raise their own children in the context of a marriage partnership?
Cooper: This is the distinction that the 8th Circuit recognized and that case after case has recognized. There are distinguishing characteristics relevant to the interest the state is pursuing here as the 8th circuit said. Only opposite-sex couples can procreate naturally and therefore it is only opposite-sex couples who uniquely address this fundamental historic purpose, and present the threat to society’s interest that marriage is designed to minimize, the threat of irresponsible procreation. The reality that procreative sexual relationships between men and women are not channeled into marriage with binding vows, then much more frequently the society has to itself cope with the adverse social ramifications of irresponsible procreation.
Walker: You don’t draw any distinction between the state’s interest in where parents conceive on their own, or where opposite-sex couples require medical intervention to produce children.
Cooper: Not quite the same, no.
Walker: What’s the difference? State’s interest is different in that child and in that marriage.
Cooper: First point I want to make is to refer back to the earlier colloquy and discussion. What are the interests served by permitting all opposite-sex couples to marry without trying to make an intrusive inquiry into fertility and desire to have children? I didn’t at that time also mention: The society’s interests are also furthered whenever opposite-sex couples are married in order to engage in sexual relationships because that strengthens the social norms the legal institution relies upon most heavily for this channeling function to be performed.
Whenever opposite-sex couples are in cohabiting relationships, now more often than in previous times of history, that weakens those social norms that seek to encourage and channel those types of procreative relationships into marriage.
To come back specifically to your point: The state’s main concern in regulating marriage in seeking to channel naturally procreative sexual conduct into stable and enduring unions is to minimize what I would call irresponsible procreation, but I can’t think of a more serviceable one. Procreation that isn’t bound by the obligations and social norms that the marital relationship is often leads to children being raised by one parent or the other, or sometimes by neither parent. That is a phenomenon that is uniquely centered on naturally procreative sexual relationships, and it is not a phenomenon that the state has to be concerned about with respect to same sex couples. The 8th circuit stressed that in the . . .
Walker: My point is that there are heterosexual couples that do not procreate on their own.
Cooper: Those couples aren’t a threat to society and the natural concerns from irresponsible procreation.
Walker: What’s the threat to society from using medical assistance to conceive children?
Cooper: There isn’t one. It is procreation that comes about casually and often “by accident” as the 8th circuit put it.
Comments
John K. Noe
June 16, 2010
5:44 pm