Box Turtle Bulletin
News and commentary about the anti-gay lobby“Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife…”
News and commentary about the anti-gay lobbyPosts Tagged As: Chuck Cooper
August 16th, 2010
Charles Cooper, for the Proponents, has filed his response to Ted Olson’s filing opposing a stay. And, as has been noted in the past, he appears to be using the spaghetti theory: throw enough against the wall and maybe something will stick.
This response seems to me to be taking an approach that has, up til now, not been given much emphasis: the “we’re just not ready yet” argument.
It was thus entirely reasonable for Californians, like the vast majority of people throughout the world, to favor preserving the traditional definition of marriage, as they continue to study the results of experiments with same-sex marriage that are now unfolding in a handful of states and foreign countries.
I think, however, that he may have difficulty in convincing a court that it truly was the Proponents intentions to study the results of those states and nations which do have marriage equality.
Most of this filing is just a repeat of what has already been said. But Cooper made one statement that – to my thinking – may not be to his advantage.
Baker v. Nelson, 409 U.S. 810 (1972), mandates reversal of the district court’s decision, see Stay Mtn. 25-26, and Plaintiffs’ attempts to evade that decision all lack merit. First, Plaintiffs claim this case is different because Proposition 8 “stripped” homosexuals of a right recognized by the California Supreme Court in the Marriage Cases decision. But if it was rational for California to adopt and maintain the traditional opposite-sex definition of marriage throughout its history, it was equally rational for California to restore that definition by enacting Proposition 8.
…
After all, the California Supreme Court’s 2008 decision invalidating the State’s 159-year-old definition of marriage was no more final than was the earlier California Court of Appeal decision upholding it. It was
reviewed and overturned by a higher tribunal—the People themselves.
Except that for the entire history of the state, the constitution was being violated by the state’s definition. That this violation was not recognized until 2008, did not make it less true. And the People did not overrule the Court’s opinion as to whether the constitution was violated, but rather changed that constitution so as to put in language that would give validation to the otherwise illegal definition.
And it was on notions similar to those advanced in In Re Marriages – but in the Federal Constitution rather than the state – that Judge Walker found similar violation. Using Cooper’s logic, if the People wish to be a higher tribunal, then they would need to do as they did in California and change the US Constitution.
June 17th, 2010
The very clear, not at all contradictory, easy as pie, self-explanatory, slap-happy purpose of marriage as laid out by Proposition 8 defender Chuck Cooper:
* the central purpose of marriage in virtually all societies and at all times has been to channel potentially procreative sexual relationships into enduring stable unions to increase the likelihood that any offspring will be raised by the man and woman who brought them into the world.
* the purpose of marriage is to provide society’s approval to that sexual relationship and to the actual production of children.
* the purpose of marriage, as Justice Stevens says, is to license cohabitation and produce legitimate children. That was the purpose of it.
* this fundamental historic purpose and who present, most importantly, uniquely, the threat to the society’s interests that marriage is designed to minimize, the threat of irresponsible procreation, the threat — the reality that when procreative sexual relationships between men and women are not channeled into marriage and these stable unions with these binding vows, then much more frequently the society has to — has to itself cope with the adverse social ramifications and consequences of that kind of irresponsible procreation
* but for reasons that we discussed earlier with respect to the opposite sex but infertile couple, allowing them to marry isn’t something that is inconsistent with the purposes of — the core procreative purposes of marriage and, in fact, in certain respects it advances those purposes and it would just not be possible or realistic, as case after case has said, for the state to try to implement its policy on a more narrow or fitted basis.
* There is a distinction, however, with respect to the fundamental procreative purpose, responsible procreative purpose of marriage; and that is that the gay couple, unlike the opposite-sex couple where one of the partners may be infertile, doesn’t represent — neither partner in the — with respect to the same-sex couple is — again, assuming homosexual sexual orientation — represents a concern about irresponsible procreation with a third party.
* The right to marry is bound up with and proceeds from the fundamental nature and its fundamental purpose relating to procreation and the existence and survival of — of the human race.
* we — as we attempt to step into the shoes of the state — don’t have to submit evidence to the Court in support of the claims of purpose and justification.
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