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Marriage on Trial in San Francisco Federal Court

 |  NCR Today

It is a fascinating thing going on up in a San Francisco federal court: marriage is on trial.

Specifically, the state's Proposition 8 is on trial. That measure -- approved by voters last November -- bans gay marriage in California. Here's the twist: before Prop 8 passed, gay couples in this states actually had been granted to right to a civil marriage, so the new law was in the awkward position of taking away rights.

And so opponents of the ban have taken to federal court.. There, yesterday, during closing arguments, something miraculous broke out: a thoughtful discussion on the nature of marriage and the role that government has in promoting it.

Presiding Judge Vaughn Walker asked the lawyer defending Prop 8 just what this marriage thing was all about. Attorney Charles Cooper's response boiled down to: making babies. And the state's interest in this? Babies without a mom and dad get into trouble later, and the state has a duty to promote societal stability.

So far, so Catholic. The church supported the Prop 8 ban, making some of the very same arguments -- gay marriage, apparently, would undermine all marriage and harm the next generation, robbing them of, well, stability.

But Judge Walker was not done: well, then, he said -- what about couples who don't have children? And those who don't have children by choice? By the logic of the defense team, the judge continued, shouldn't the state then pass laws requiring married couples to procreate?

Cooper had no good answer, other than to call the above scenario "Orwellian" in its exertion of state power over the individual.

Um, yes. Which would be the argument presented by those supporting guy marriage as a civil, government-administered matter. The church has every right to say it does not condone same-sex unions, so don't you walk in here expecting to get one. Quite another matter to push the state into going along with this as a matter of civil rights and wrongs.

So what is the nature of marriage? If it does not rely solely on making babies (if states or churches for that matter aren't going to require couples have kids), then where does marriage fit -- and why would the government care?

I think the answer really is about stability. Society is better when it is stable, and marriage (when two people actually stick with it) is a great way to reach that stability. Married people buy homes, pay more taxes, don't get into as much trouble, and lead the kind of hum-drum lives that eventually get made fun of on television sit-coms. All good for society at large.

And you don't have to be straight to get this benefit. Gay couples also buy homes, pay taxes, and stay out of harm's way. They are there to help each other so that the rest of society (in the form of charity or state-run programs) need not step in so often. Those are the cold, hard facts -- the kind of realities upon with laws and rights ought to be based.

No matter what the outcome in San Francisco, Prop 8 is likely to find its way to the Supreme Court -- what happens then is anyone's guess. My hope is that -- at the very least -- there is a continued real, deep and true discussion on what marriage is, what it means, and why the government should care.

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