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Friday, February 25, 2005
Ind. Decisions - Procreation is the key to gay marriage rulings
"Procreation is the key to gay marriage rulings" is the headline to an AP story available today in the San Jose Mercury News. Some quotes from the beginning of the piece:
SAN FRANCISCO - For the judges around the country deciding whether gays and lesbians should be allowed to marry, much of the legal analysis boils down to sex, or to put a finer point on it, procreation.Opponents of same-sex marriage argue that the need to ensure the survival of the state and species - through the creation of offspring by a man and a woman - is the historical and institutional foundation upon which marriage exists.
"The fundamental right to marry has always been about procreation," Alliance Defense Fund attorney Glen Lavy recently argued to San Francisco County Superior Court Judge Richard Kramer, who is expected to rule any day whether California's ban on gay marriage violates the state Constitution.
Kramer is the latest among dozens of judges and courts nationwide to hear such arguments - that procreation is a loftier goal than ending what many gays and lesbians say amounts to discrimination.
But before judges decide whether supporting procreation should outweigh ending alleged discrimination, they must first decide whether the desire to create children even meets the "rational basis" test.
Specifically, the question is whether it is rational to limit the rights and privileges of one class of citizens - gays and lesbians - in order to promote the legitimate state interest of fostering the survival of the human race.
Courts in Massachusetts, New York and Washington state, in ruling against same-sex marriage bans, recently wrote that the state interest no longer applies in a modern world of artificial insemination and adoption - and that in any case, procreation isn't threatened by same-sex marriage.
"The precise question is whether barring committed same-sex couples from the benefits of the civil marriage laws somehow serves the interest of encouraging procreation. There is no logical way in which it does so," King County Superior Court Judge William Downing of Seattle ruled in August 2004.
But courts in Indiana and Arizona, facing the same sets of facts, have gone the other way. The Indiana Court of Appeals ruled in January that "there was a rational basis for the Legislature to draw the line between opposite-sex couples, who as a generic group are biologically capable of reproducing, and same-sex couples, who are not."
Posted by Marcia Oddi on February 25, 2005 06:30 PM
Posted to Ind. App.Ct. Decisions