Sunday, March 20, 2005

Baby Machines

Perhaps with Kramer'’s decision, the same-sex-marriage cons will see the ineffectiveness of the argument that marriage has to be between a man and woman because its main purpose is to ensure procreation. The logic has long been terribly flawed. It would seem to preclude from marriage 1) those who can’t have children (too old or sterile for some other reason), and 2) those who choose not to have children. It also ignores that a lesbian is as fertile to artificial or natural insemination as a straight woman.

Note: The above link opens a 27-page PDF (only 62KB) file. You need Adobe Acrobat or a compatible reader to view it.

Yet, this argument has come up repeatedly in recent court filings as well as in legislative debates. Maybe Kramer's clear rebuttal will remove this distraction from the more meaningful discussions.

He refers to Baker v. Baker (1859) 13 Cal.87, cited by cons. In that, the court let a man annul a marriage when he found his bride pregnant by another man. Here, Kramer, noted the decision was not based on her inability to bear the new husband’'s child. Rather, she had defrauded him into marriage by concealing her condition. Likewise, in Vileta v. Vileta (1942) 53 Cal. App. 2d 749, the new wife had told her hubby before their marriage that she could have children. She knew she couldn'’t. The court annulled that marriage, again on fraud, not on her inability to breed. Kramer’'s decision deals with several other similar cases presented for his consideration.

Kramer writes:
The facts in plaintiffs’ cases also confirm the obvious natural and social reality that one does not have to be married in order to procreate, nor does one have to procreate in order to be married. Thus, no legitimate state interest to justify the preclusion of same-sex marriage can be found in plaintiffs’ cases.

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