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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.
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.