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Prop 8 trial: Cooper on procreation and marriage (long)


I kept an intermittent eye on the closing arguments to the Prop 8 trial yesterday; there was liveblogging for much of the day from Firedoglake, and there was an interesting automatic transcription in realtime from the American Foundation for Equal Rights. (It kept making text-to-speech errors like “I am mutability” for “immutability,” but it mostly wasn't too hard to get the gist of what the lawyers were saying.)

The closing arguments from our side, by Theodore Olson (hey! he grew up in Mountain View!), were pretty good, so I'm going to skip talking about them here. Then came the defendants' closing arguments, by Charles Cooper.

[Added later: boy is this long. Sorry about that. I've added some bolding to a few key lines that summarize Cooper's argument; if you're in a hurry or your eyes are glazing over, just scroll down and look for the boldface.]

(I'll be quoting below from the official transcript (160-page PDF).)

Cooper started by giving what I initially thought was the standard argument that marriage is to promote procreation:

[...] 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.

—p. 3028

And added that marriage is really important:

[...] the marital relationship is fundamental to the existence and survival of the race. Without the marital relationship, your Honor, society would come to an end.

—p. 3030

Judge Walker attempted to head off the standard “marriage is all about procreation” argument, noting that “the state doesn't withhold the right to marriage [from] people who are unable to produce children of their own.

But Cooper replied, essentially, that the reason the state wants opposite-sex couples to get married is to keep them from having kids out of wedlock.

[Added later: Yes, I know, that sounds fairly reasonable on the face of it; sure, society has an interest in kids being raised by a strong family. But that's not all Cooper is saying. Keep reading.]

First he noted that it's in the state's interest to “attempt to channel into the marital union all potentially procreative relationships, as well as all male-female relationships.”

(So presumably every time a man and a woman have a one-night stand, the state should be trying to convince them to get married. Perhaps this interest could be served by putting state-sponsored wedding chapels in bars.)

Then he said that doing fertility testing on couples who wanted to get married would be “Orwellian.” Judge Walker agreed, and added, “but isn't that the logic that flows from the premise that marriage is about procreation?”

And Cooper replied that the state's goal is to

increase the likelihood [...] that naturally procreative sexual relationships will take place in an enduring and stable family environment for the sake of raising the children so that essentially the society itself [...] doesn't have to step in and take upon its own shoulders the obligations to help in the raising of those children.

And so society doesn't run the risk of all the negative social consequences that come from, say, unwed mothers raising children by themselves, and such as that.

—pp. 3034–3035

[Added later: Again, yes, obviously society is in favor of two-or-more-parent households. But that's not an argument against same-sex marriage!]

So of course Judge Walker is all like What about adopted kids?

And Cooper replies like so:

[...] with respect to adoptive children, yes, the state does make arrangements and it does create in law a relationship that is in all respects, virtually all respects, identical to a natural and biological relationship. It does that, again, for the sake of children, for the sake of the upbringing of children, and creates with respect to those children rights and responsibilities in their adoptive parents that are the natural—result of natural procreation.

—pp. 3035-3036

(Um, what does that have to do with marriage being about procreation?)

There then ensues several pages of Cooper attempting to justify his point about procreation by quoting a bunch of other court cases and laws and such, items which were not previously introduced as evidence in the trial itself. Judge Walker finally gets, I think, a little fed up with Cooper's attempts to introduce new evidence at this late stage; Walker says:

If you have got 7 million Californians who took this position, 70 judges, as you pointed out, and this long history that you have described, why in this case did you present but one witness on this subject? One witness. You had a lot to choose from if you had that many people behind you. Why only one witness? And I think it fair to say that his testimony was equivocal in some respects.

—p. 3042


But Cooper goes back to expounding about channeling procreative urges. He even brings up the usual argument these days that Loving v. Virginia is irrelevant to same-sex marriage, because that case was all about fighting the evils of racism, but it was a man and a woman who wanted to get married so it was still part of the procreative framework of marriage. Yes, people at the time said that different races shouldn't interbreed, but those people were bad and wrong, unlike us enlightened folks today who have no prejudices at all. Cooper adds that the restriction on interracial marriage was contrary to (nay, was at war with!) the very purpose of marriage, which is to prevent illegitimate children.

Walker, naturally, asks:

Why isn't the limitation on marriage for gay couples and lesbian couples similarly at war with their desires to raise children, raise their own children in the context of a marriage partnership?

—p. 3049

Cooper says: But that's different! (Or rather: “There are distinguishing characteristics.”)

And now we come to the beginning of the core of Cooper's argument, which is kind of breathtaking in its novelty:

As the Eighth Circuit said, your Honor, only opposite-sex couples can procreate naturally and, therefore, it is only opposite-sex couples who uniquely, uniquely address 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.

—p. 3049

Yes, you read that right:

The lawyer who is in charge of the defense of Prop 8 says that opposite-sex couples are a threat to society because they might irresponsibly procreate outside of a stable relationship, and that the main point of the existence of marriage is to prevent that irresponsible procreation.

And thus, obviously there's no point in letting same-sex couples marry, because there's no chance of their irresponsibly procreating by accident.

No, really. You may think I'm joking or exaggerating or misinterpreting, but look:

[...] the state's main concern or certainly among the state's main concern[s] 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. It's not a good term, but I can't think of a more serviceable one. And that is, procreation that is—that isn't bound by the kinds of obligations and social norms that the marital relationship is and that often leads to children being raised by one parent or the other or sometimes neither parent.

That is a phenomenon that is uniquely centered on naturally procreative sexual relationships between men and women. It is—it is not a phenomenon that the state has to be concerned about with respect to same-sex couples.

For a same-sex couple to procreate it, by definition, has to be responsible. It can't be by accident. That's the key point.

—pp. 3051-3052

[Added later: I think all the verbiage may have obscured my point, which is that this is not a good argument against same-sex marriage.]

It goes on. Judge Walker says there are plenty of opposite-sex couples who don't or can't procreate without help. Cooper replies, “it is not those opposite-sex couples either that the state is concerned about,” and adds:

The opposite-sex couple where one of the partners is infertile, for example, or the same-sex couple can't unintentionally procreate, but [...] 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[...].

[Because if an infertile couple gets married, then] the fertile member of that couple will be less likely to engage in sexual relationships with third parties and raise anew a threat of some type of unintentional or what I have been referring to previously as irresponsible procreation.

[...But] 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.

—pp. 3052-3053


So as far as I understand it, Cooper is saying:

  1. A man and a woman, left to their own devices, without benefit of marriage, might accidentally engage in “irresponsible procreation.”
  2. And so we try to convince them to get married so that any procreation that happens will be within a longterm stable relationship.
  3. We also let opposite-sex couples who can't or won't procreate (or can't without third-party help) get married, because, well, why not? Doesn't hurt anything, and it keeps them off the streets. One of them might be fertile, and if we don't let them marry an infertile person, they might go off and breed with someone else by accident.
  4. But we shouldn't let same-sex couples get married, because (a) they can't accidentally have kids, so they don't need to get married to avoid irresponsible procreation, and (b) there's no chance of them going off and breeding with someone else by accident.

By this time I was about ready to scream. This is the basis on which you want to deny the right to marry to an entire class of people? It's not only probably the most bizarre, circular, gigantic-hole-filled argument against same-sex marriage that I've encountered, it's also (as far as I can tell) a new one, constructed out of whole cloth by Cooper. I've seen lots of people claim that the point of marriage is to promote procreation (including Cooper's team during the Prop 8 trial), but I've never before seen anyone turn it around and claim that the point of marriage is to stop heterosexuals from destroying society by accidentally uncontrollably breeding out of wedlock (but it's fine for homosexuals to breed out of wedlock, because allegedly that can't happen accidentally, only on purpose). (In fact, it's such an off-the-wall argument that Olson later misinterpreted what Cooper was saying, unfortunately.)

[Added later: Here again I think I accidentally obscured my point. My point is: Even if it's true that the only purpose of marriage is to keep straight people from accidentally having kids outside of relationships, that's no reason to prevent same-sex couples from getting married! Cooper is taking the basic reasonable idea that stable parental relationships are good for kids, and turning it on its head by saying that the only kids that need stable parental relationships are the ones who are conceived accidentally by straight couples.]

But wait: it gets worse.

Because (after a couple pages of attempting to claim that everyone who voted for Prop 8 did so for this procreative reason), the next thing Cooper said was that he didn't really need to make any arguments or present any evidence, because gays aren't a suspect class and thus it's up to the plaintiffs to prove that there couldn't possibly be a rational basis for the discrimination.

This is an utterly infuriating argument.

And yet, I suspect that if the Prop 8 people prevail in this case, it'll be because of that argument.

For our side to succeed, as I understand it, Walker has to either decide that gays are a suspect or quasi-suspect class (which there's some precedent for and some against), or decide that they're a non-suspect class but that there's no rational basis for discriminating against them in this way. I'm hoping that he'll decide one or the other of those things, but that seems uncertain to me.

It would also be theoretically possible, of course, for him to decide that Cooper's procreation argument makes sense, but that seems vanishingly unlikely to me, given how weird and incoherent it was, and how little it had to do with the (flimsy) case that Cooper's side had presented during the trial itself.

Theodore Olson went on to give a stirring and eloquent rebuttal to those of Cooper's points that were subject to rational debate. Olson is awesome.

Here—just so I don't have to end with the bad taste of Cooper's argument in my mouth, let me quote Olson's closing rebuttal a bit:

[Marriage] is an individual constitutional right. And every Supreme Court decision says that it's a right of persons. Not the right of California to channel those of us who live in California into certain activities or in a certain way.


What we're talking about here is allowing individuals who have the same impulses, the same drives, the same desires as all of the rest of us, to have a relationship in harmony, stability, and to form a family and a neighborhood, all of those things that the Supreme Court talked about.

And, now, tell me how it helps the rest of the citizens of California to keep them out of the club. It doesn't.


[In fourteen Supreme Court cases], they talked about the fundamental right to marriage as an individual right in the context of contraception, which is not procreative, interracial marriage, which is neutral on the subject, divorce, which is not channeling somebody into a relationship, mandatory leave for public school teachers, family occupancy of a particular family home, prisoners, and so forth.


[Repealing] Proposition 8 isn't changing the institution of marriage. It is correcting a restriction based upon sex and sexual orientation.


Now, rational basis, strict scrutiny, or some kind of intermediate scrutiny tells you those are basic facts. You are discriminating against a group of people. You are causing them harm. You are excluding them from an important part of life. And you have to have a good reason for that.

And I submit, at the end of the day, [that Cooper's] “I don't know” and “I don't have to put any evidence,” with all due respect to Mr. Cooper, does not cut it.

It does not cut it when you are taking away the constitutional rights, basic human rights and human decency from a large group of individuals, and you don't know why they are a threat to your definition of a particular institution.


That is not acceptable. It's not acceptable under our Constitution. And Mr. Blankenhorn is absolutely right. The day that we end that, we will be more American.

—pp. 3097-3114

(For those who missed it during the trial, Blankenhorn was the defense witness who made several statements that appeared to support same-sex marriage, including the great line (from his book) “[W]e would be more American on the day we permitted same-sex marriage than we were on the day before.”)


Jed, I'm too tired to do properly this in typing, but I actually kind of agree with him, or at least the major part of his claim. If you'd asked me what marriage was for, I'd have said that the historic reason state-sponsored marriage exists is to try to make sure that children are the responsibility of their biological parents, and not the state. Because it's too way expensive for the state to support all those children (in a capitalist, rather than socialist) framework. Society would break.

Now, there's a ton of other stuff that interacts with that, but if we're strictly looking at why the state has a vested interest in getting people married, that's basically it. My kids each cost at least $10,000 / year from now until adulthood. (http://today.msnbc.msn.com/id/20203458/) If Kev and I just stopped paying that, society would have to suck it up, either raising taxes appropriately, or letting children starve / go to poorhouse-workhouse (the Victorian solution), which we're generally not willing to do these days, or at least not when it's shoved in our faces that that's what's happening.

Of course, genetic testing proving we're the parents has recently made it easier for the state to try to enforce our bearing the financial burden. But historically, social stigma has been the main weapon society has to make people pay for their kids. Hence, the push to marry, and marry young -- and all the penalties for transgressing against it.

Once you're past child-bearing age, society (and its vehicle, the state) doesn't care anymore whether you get married or not.

Oh, and as you see in more socialist countries today, this correlates pretty cleanly with people not bothering to get married nearly as much. State financial concern goes away (because the population overall has just decided to pick up the tab for kids, as necessary), social pressure goes away, state financial incentives to marry go away -- all that's left is sentiment & religion.

In the U.K., first marriage have halved since 1970. Children born outside of marriage in the UK has risen from 12% in 1980 to 42% in 2004. 15 other EU countries had an average of 33% of children born outside of marriage. This increase was due not only to more single-parent families, but also an increase in cohabitation: From 1986 to 2004, the percentage of non-married people under 60 who cohabited rose from 11% to 24% among men, and from 13% to 25% for women. (http://www.feministing.com/archives/002732.html)

Even in the U.S., the situation is changing. In the U.S., in 2006, 38.5% of births are to unmarried women, up from 30% in 1992. The social stigma has decreased, probably in large part because we offer a lot more social services than we used to. (Pre-recession, anyway.) And maybe that's what's going to allow gay marriage in the end -- as the state interest decreases in the procreative aspect, the rest is mostly sentiment & religion.

Cooper: [Because if an infertile couple gets married, then] the fertile member of that couple will be less likely to engage in sexual relationships with third parties and raise anew a threat of some type of unintentional or what I have been referring to previously as irresponsible procreation.

Consider a same-sex couple where at least one member of that couple is able or willing to engage in sex with someone of the opposite gender. Let's call that person the flexible member of that couple. Why should we allow this same-sex couple of get married?

Because if the same-sex couple gets married, then the flexible member of that couple will be less likely to engage in sexual relationships with third parties and raise anew a threat of some type of unintentional or what I have been referring to previously as irresponsible procreation.

Whoops. I think Cooper's argument may have just come around and bit him on the ass, if anyone points it out to the judge.

I halfway agree with Mary Anne--that is, I agree that there's a relationship between marriage and state-provided social services, though I'm not sure I agree about the causality. I'd say that services increase as social stigma decreases, not the other way around. Lower marriage rates in Europe also align with lower levels of religious participation. (And, on the other hand, people past childbearing age have to worry quite a lot about how marriage will affect their pensions.)

But I do think that the arguments being made about gay marriage have been, hmm, disturbingly honest about the function of marriage as social control of sexuality and women, not to mention what counts as a real family.

I'm sorry about this—I knew as I was writing it that this followup argument was going to happen, but I was too sleepy to figure out how to explain more directly and clearly what I was objecting to.

Now that I'm a little more awake, here's the thing that I'm objecting to (and I've added this as a note in the middle of the entry too):

Cooper is taking the basic reasonable idea that stable parental relationships are good for kids, and turning it on its head by saying that the only kids who need stable parental relationships are the ones who are conceived (without help) by straight couples.

I don't disagree with him that stable parental relationships are good for kids! But I vehemently disagree with him that that's an even vaguely relevant argument against same-sex marriage.

On the one hand, he repeatedly sidesteps the point that lots of opposite-sex marriages don't involve his idea of “natural” conception: infertile couples, older couples, childfree couples, adoptive parents, etc. (And he really does say that opposite-sex couples who don't conceive on their own are irrelevant to the state's interests.)

And on the other hand, he completely ignores the point that many same-sex couples have kids. If he wanted all kids to be raised in stable relationships, then he would want same-sex couples to get married.

In other words, the reasonable part of his argument has nothing to do with the point he's claiming that he's making.

More later, when I've had some breakfast.

Actually, with all due respect, I strongly disagree with Mary Anne about marriage historically being to reduce the state's responsibility for out-of-wedlock children -- it's much more medieval than that. Historically, marriage was all about controlling property, and, more specifically, who gets the property after the parents pass. At least in Western culture (I'm too ignorant to comment on others), the Church wanted to get its share, so by controlling marriage it was able to control property rights.

As for Cooper and his (non) arguments, Elizabeth is convinced that he's already looking beyond this case, and is just preaching to the choir. She figures that no lawyer would ever argue in a court that they didn't need to present evidence if they thought their closing arguments had any relevance. Basically, the issue will hinge on strict scrutiny, and Walker is most likely to give a split decision: he'll uphold 8 due to the failure to prove the strict scrutiny requirement (because to prove strict scrutiny, Olson has to prove it overwhelmingly. It's not fair, but I'm afraid that's the way it is.), but his ruling will also invalidate a lot of Cooper's arguments for future cases (e.g., the procreation argument). The opinion will lay the groundwork for future cases. Meanwhile, Cooper is bloviating specifically to use in fundraising for those future efforts "Look how I spoke the Lord's truth in court!"

I've been impressed by Olson in this round. He's been very on target, and precise, with a lot of facts at his fingertips. He's also been very good about calling "bullshit" on Cooper's vague declarations and unsupported assertions. Cooper's been throwing everything he can get his hands on, and hoping something will stick. My fear is that Walker will try to make as narrow a ruling as possible. If then the Supremes decline to hear challenges to it, we'll have to wait until we can repeal 8 by initiative. By then, the Massachusetts challenge to DOMA will have been resolved one way or another.

It's gonna be a rough road, but we're going to reach the end of it. It may take us another decade, but time is on our side.

Hi, Mary Anne! I apologize again for making you write all that out; I knew that was more or less how a bunch of people would react on reading Cooper's arguments, but I nonetheless failed to coherently explain what I was objecting to. I was falling asleep at the keyboard by the time I posted this; I should've held off until morning and added some coherence before posting.

Now that I've had some breakfast, I'll attempt to respond more directly to a couple of the things you said.

I think I would take a middle-ground position between what you and Jessie and Samuel said: I'll agree that—whatever the original historical forces involved—one of the positive effects (from the state's point of view) of an opposite-sex couple getting married has often been that it increases the likelihood that the couple will shoulder most of the burden of taking care of any kids that they have.

(On a side note, though, this approach seems to me to presuppose a lot of things: that marriages are stable (that is, that there isn't a high divorce rate that leads to a lot of single parents); that marriages are financially sound (that is, that you don't have a lot of married couples on welfare and such); that longterm relationships without marriage are less stable and less financially sound than marriages; that the state-provided incentives for marriage cost the state less than it would spend on the same couple if they weren't married; etc. Most of those things may be true more often than not; I'm just saying that it's worth keeping in mind that the “state encourages marriage to avoid having to pay for kids” argument relies on these sorts of broad assumptions.)

It seems to me that you're saying that that's the main point of Cooper's argument. I would agree that it's one leg that his argument is based on. But from my perspective, the main point of his making this argument is all the hugely handwavey parts that he tacks on (without support), and those are primarily what I was objecting to.

I also wanted to reply to one specific line from what you (Mary Anne) wrote:

Once you're past child-bearing age, society (and its vehicle, the state) doesn't care anymore whether you get married or not.

I may be reading too much into your phrasing, in which case my comment here is probably irrelevant. But if I understand what you're saying here, I don't entirely agree.

I might go along with a softened version of this: society and the state probably do care somewhat less about whether childless couples get married than about whether couples with children get married.

But I don't agree that society's only (or even primary) interest in marriage (in the modern US) is in preventing “illegitimate” children.

We as a society (I'm taking a step back from the state issue here, ’cause I think that's a little different) say that marriage is a lot of things: an enduring relationship, a public commitment to that relationship, a proclamation of love, an agreement to work hard together to make the relationship work, a legitimizing of sex, a way to create a kinship bond, a spiritual or religious union, a joining of property, etc.

(Of course, plenty of people do all those things without getting married. I'm just saying that imo our society tends to associate those things with marriage, to the point that society often assumes people are married if they have those things.)

And, sure, I agree that we as a society also do say that if you're going to have kids, you should ideally be married.

But that's not, in my view, the main point of marriage in the eyes of modern American society. And so I think society cares a fair bit about whether you get married or not regardless of whether you can (or want to) have kids.

I think that in the eyes of our society, a couple who live together without being married generally have lower status (and are taken less seriously as a couple) than a couple who don't, and that that's true even if the couple have adopted children, even if the couple are elderly, even if the couple are infertile, even if the couple state publicly and clearly that they will not have kids.

This all may be changing; as you noted, the social stigma against not being married has lessened significantly in the US in recent decades. But I think that in mainstream American society, unmarried couples are still widely seen as being of at least somewhat lesser worth than married couples, regardless of kids.

Zim: Wow, that's a great point, and I totally missed it. Thank you!

I've been trying so hard to leave bisexuals out of the discussion that I wasn't even thinking about them when I read that, but you're absolutely right:

The logical conclusion of Cooper's argument is indeed that the state must encourage bisexuals to get married, regardless of the gender of the person they marry.

(And yeah, you're right that the same argument also applies to people who don't identify as bi but are willing to sleep with members of the opposite sex. But I think it's thrown into sharpest relief if we phrase it in terms of bisexuals.)

This is almost enough to make me wish that Cooper's argument actually made sense or was relevant. :)

Just on the issue of why states have an interest in marriage, I think Samuel Goldstein is closer to the truth. Among other things, historically, children have been viewed largely as assets rather than liabilities, so the idea that marriage protects the state from the cost of raising children is a very new one. It's only fairly recently that we've embraced the idea that parents need to make a huge, longterm financial investment in their children without any expectation of return. There are still a lot of places on earth where people have a lot of children because, among other things, children are labor now and social security later.

From a cross-cultural perspective, there are two pretty constant themes around marriage:

One is spiritual. This is an element of marriage in every society I can think of. The range of spiritual meanings of marriage is very broad, but it's generally there, at least in theory.

The other is, broadly speaking, property -- determining property rights, including inheritance; exchange of wealth in one direction or the other (the most common being dowry and bride price); economic and in some cases political alliance between families. All of these predate states, but the legal authority of the state is now an integral part of the institution of marriage. The modern state-sponsored marriage incorporates these factors, as well as other legal rights that ordinarily go to the next of kin, such as ability to make medical and legal decisions.

You could also argue that another big theme is control of female sexuality, but that's probably not quite as universal.

One way to think about it is that there are three basic ways, legally, for people to be members of the same family: consanguinity; adoption; marriage. And I think the reason that property rights have been so key, historically, to the practice of marriage is simply that the basic economic unit of society is the household -- whether it's nuclear, extended, clan, etc. -- and therefore when someone moves from one household to another (again, a pretty universal aspect of marriage), economic relationships change and have to be accommodated in one way or another.

Oh, and Cooper is insane.

Here's a comment I wrote the other day but neglected to post:

One of the novel things about Cooper's argument is that he implies that the state is the only entity that wants people to get married. In his argument, as far as I can tell, people simply wouldn't get married if it weren't for the state pushing them to do so.

(It's probably true that if the state didn't provide a package of special benefits to married couples, fewer people would get married. But I'm pretty sure that in the modern US, those benefits are not the primary reason that most married couples had for getting married.)

Which somehow manages to miss the central point at the heart of this very case:

A bunch of same-sex couples want to get married.

And Cooper is saying that we shouldn't let them get married because there's no chance of their accidentally having kids.

Even if one were to believe every word of his argument (which I don't), he shows no good reason to withhold marriage from people who want it; the entirety of his argument is focused on why the state wants some people to get married, but never does he say why the state should therefore be opposed to allowing other people to get married.

Cooper's argument seems to me to suggest that marriage isn't a right; rather, it's a burden imposed by the state, something the state bribes couples to do.

Which (although I grant that there's a certain amount of truth to it) I'm pretty sure is a view of marriage that most anti-same-sex-marriage people (and most Americans in general) don't actually hold.

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