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Procreative Activity

Timothy Kincaid

October 27th, 2009

One of the chief arguments against same-sex marriage (especially that of Catholics) is that the purpose of marriage is to ensure that procreative activities occur within stable families best able to raise the resulting children. And when challenged about the elderly or the barren, the argument is that while some specific married persons cannot procreate, their activities are procreative in nature.

So it is with interest that we observe an amusing anecdote that has emerged from the Olson/Boies challenge to Proposition 8. (NYTimes)

The government should be allowed to favor opposite-sex marriages, Mr. Cooper said, in order “to channel naturally procreative sexual activity between men and women into stable, enduring unions.”

Judge Walker appeared puzzled. “The last marriage that I performed,” the judge said, “involved a groom who was 95, and the bride was 83. I did not demand that they prove that they intended to engage in procreative activity. Now, was I missing something?”

Mr. Cooper said no.

As Judge Walker is not willing to buy into religious presumptions, Mr. Cooper may find it difficult to articulate in this case just exactly why the voters can have excluded a subset of the populace from enjoying the rights afforded to other citizens for reasons other than animus. And if he is unable to do so, that may bode well for this lawsuit.

Comments

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Burr
October 27th, 2009 | LINK

Ooh he wants this televised. That would be fantastic to see all the hemming and hawing the liar will be doing as he squirms under the microscope of justice.

Dawn/FFL
October 27th, 2009 | LINK

I noticed in my feedreader that the ad at the bottom was for a yes on 1 from “stand for marriage maine” – I made sure to click on it to give you money and use up their money for ad revenue.

Dan
October 27th, 2009 | LINK

We should all take a few minutes to go to every gay-friendly website that display these ads and get them clicked. Do it from multiple computers (with different IP addresses if available).

This is like mana from heaven! Christmas is coming early this year!

Lindoro Almaviva
October 27th, 2009 | LINK

OK, let me explain something here. Yes, the Catholic church does believe that marriage is mainly for procreation. It is part of the vows that you take when you marry within the church. You are asked if you are willing to accept the children that God sends your way, and you better say yes or else. Furthermore, if a spouse can produce evidence that one of the partners actively sought avoiding having children, the church will find grounds for nullification of the marriage.

Now, that doesn’t stop the church will marry elderly people or someone who is medically incapable of having children; but if you have taken measures to ensure you never do, and say so during premarital counseling with the church you will not be married under any circumstance.

How many protestant churches will marry you even if they know that you had a mastectomy at 25, or had your tubes tide at 20 because you didn’t want children? At least in that aspect the catholic church is consistent.

AJD
October 27th, 2009 | LINK

He can’t prove that legalizing same-sex marriage will diminish the number of opposite-sex marriages or the latter’s procreative potential for the simple reason that both notions are absurd on their face.

Christopher Waldrop
October 28th, 2009 | LINK

What’s amazing to me is that the judge’s question took Cooper by surprise. Was he not expecting it? Was he not prepared to be questioned about whether marriage was intended solely “to channel naturally procreative sexual activity between men and women into stable, enduring unions”?

His lack of preparedness makes me wonder if Mr. Cooper is trying to lose. And if he is, well, bully for him.

John
October 28th, 2009 | LINK

“At least in that aspect the catholic church is consistent.”

Debatable but entirely irrelevant, which is exactly the point. Churches have the right to form their doctrines as they please but do not have the right to dictate public policy. This is about CIVIL marriage, not religious. The Catholic Church is free to ban same-sex couples, divorced persons, non-Catholics, etc. from the altars in their churches for whatever grounds it likes as much as it pleases. When it comes to CIVIL marriage that is a whole ‘nother matter entirely…

GreenEyedLilo
October 28th, 2009 | LINK

@ Lindoro: Thank you for the insight for those of us who were never Catholic.

Thank you, Judge Walker! That was terrific.

Of course a minister of any faith has the right to refuse to marry any couple s/he wants. They can and do refuse to perform marriages that are perfectly legal under civil law for many reasons. The Catholic Church’s ability to refuse marriages to divorcees and childfree by choice people demonstrates that civil law does not, as so many of our opponents like to argue, impinge on anyone’s religious freedom. As I frequently argue, what we want is the right to choose to go to the courthouse (or other, more accepting venue), just like any mixed-sex couple who can’t get married in a given house of worship.

Regan DuCasse
October 28th, 2009 | LINK

All of the points here expressed, are evidence of reality.
The other, more specious argument is fear of litigious reprisals for churches or other places of worship that refuse to marry SS couples.

Considering that OTHER couples who don’t meet the standards of faith services set forth don’t litigate, and there is no civil discrimination against them, how does it follow that gay couples will sue?
It’s almost laughable how specific a law has to be on this.

In my neighborhood, there is a church with a big sign that reads “We Support Marriage Equality”.
Bam.
There are several in fact who have similar signage.

At least a place of worship should and COULD be specific and have a whole LIST of religious objections so that someone is informed beforehand on how to avoid a place that doesn’t welcome them.

But we all know the reason for that, however ugly and more truthful it would be.

Autopsy, blood and organ donation, contraceptive sex and…dancing.

How is it that all manner of religious people whose faith rejects and abhors these activities, manage to accept them all as part of the reasonable and important factor of FREEDOM for other members of humanity?

They may reject these things as individuals, but cannot force these objections on or opportunities FROM those who accept them?
Indeed, require them. Although with a few exceptions, these activities are part of modern living, and unimaginable in the ancient societies that created the religion in the first place.

Homosexuality is also a part of all humanity that preexisted religions, how ever differently they all manifested, homosexuality isn’t changed, neither has transgenderism.

So, what courts could possibly favor such selective religious objection in the face of the simple practicality AND positive aspects that equality represents and always has?

In herniating and torturing law to treat gay people differently for BEING different, equality also seems like the most reasonable thing to decide in a court decision, since so much else has failed and become unnecessarily complicated and convoluted.

Each and every basic argument from the opposition is non existent in law. So none of them, added altogether will make good law for a good reason.
At some point, it will insult every hetero in an equal social position and beg suspension of reasoned belief.

And no court should be in the position of deciding on or with either of these.
All that’s left IS animus as the driving force behind the discrimination.
And no court should favor that either.

CubPaws
November 2nd, 2009 | LINK

The funny thing is that the proposition of Cooper’s argument doesn’t even establish his conclusion.

Cooper argues that the government has a legitimate interest in “channeling naturally procreative activity into enduring relationships”, and that this interest can be served by discriminating against same-sex couples in the realm of marriage. But same-sex activities do not constitute “naturally procreative activity” to begin with – i.e. GLBT folks don’t even engage in the behavior that Cooper claims needs to be “channeled”.

In other words, even if you buy that the government has a legitimate interest in “channeling” people’s sexuality (which I don’t), there is no connection between the purported government interest and the means being advanced to accomplish it. Thus, Cooper’s case for discriminating against SSM lacks the “tailoring” that, as a matter of constitutional law, is required in order to justify discriminatory state action.

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