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The core Prop 8 argument against same-sex marriage

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Back in mid-2010, I wrote a ridiculously long and detailed analysis of the closing argument made by Prop 8 lawyer Charles Cooper. At this point, if you want to read that entry at all, I recommend reading only the boldfaced bits, and then reading the comment thread in which various people disagreed with me and I tried to clarify my point, which I had managed to thoroughly obscure in the mass of verbiage that was my entry. (I also went back and added parenthetical asides in the body of the entry to attempt to clarify.)

But there's no need for you to read that old entry, 'cause I think that I recently finally figured out what Cooper was really trying to say. I haven't read his new brief yet, and I gather that it's more coherent than his previous attempts, so maybe he outright says this now. But in case not, I think the following is the core of Cooper's argument. The first three steps are the same as what I previously thought; it's step 4 that's different.

  1. Marriage's sole and entire goal is to prevent people from irresponsibly procreating.
  2. Therefore, the state has an interest in straight people getting married. (This is the reasonable part of his argument.)

    (As a commenter pointed out in 2010, Cooper's argument also implies that the state has an interest in bi people getting married, regardless of the gender of their partner, but I'll skip that point for the purposes of this analysis.)

  3. Same-sex marriage doesn't prevent irresponsible procreation. (Assuming that fertile people who get same-sex-married would never have had heterosexual intercourse even if they didn't get married.)
  4. Therefore, the state doesn't care whether gay people get married or not.
  5. Therefore, it's not a problem if the people vote to ban same-sex marriage.

In my previous analysis, I got hung up on the idea that step 4 above was “Therefore, the state should ban same-sex marriage,” which doesn't logically follow from the earlier steps; “no reason to promote it” is not the same as “reason to ban it.” But I now think that he didn't actually mean to argue that this was a reason to ban it; I think all of this was in the service of demonstrating that the state has a rational basis (which is a key legal term) for its interest in the institution of opposite-sex marriage (really of marriage for fertile people who have sex with fertile people of the opposite sex), and doesn't have that same rational basis for allowing same-sex marriage, and thus that it's not discriminatory to allow one but not the other.

Which makes a lot more sense to me. I still strongly disagree with all sorts of pieces of this, but at least the argument is a logically coherent one.

Cooper did such a bad job of presenting his argument in the original court that neither the judge nor the opposing lawyers understood it. (Their responses to his argument were responses to the different argument that they thought he was making.) But his argument has become one of the main ones being put forward by anti-same-sex-marriage advocates in the past year or so, and he's had time to hone it and clarify it; it remains to be seen whether it will sway any Supreme Court justices.

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