[Ed. Note: We're almost a third of the way to our fundraising goal of at least $50,000 for Firedoglake by June 30. It's critical we raise these funds by the end of the month to, as Teddy notes below, continue to provide our unique mix of independent journalism, analysis, and advocacy. Please chip in $10, $20, $50, or whatever you can afford to help us reach our goal.]FDL Covers the Prop 8 Trial

Watching last week’s Closing Arguments in the Perry v Schwarzenegger federal trial to determine the constitutionality of California’s Proposition 8, which revoked marriage rights for same-sex couples, I was struck, as I am every time the Proponents’ (Defendant-Intervenor) Counsel rises to address the Court: here’s yet another argument they’ve decided to take for a test drive.

Last week, it was some new silliness that the state has an interest in opposite-sex (“traditional”) marriage because the state-sanctified marital bond provides a way to channel otherwise irresponsible procreation. This will ensure that the child resulting from such “sexual congress” will be raised by its natural mother and natural father. Left un-argued was how, exactly, it then becomes the state’s business to delegitimize same-sex marriages, since the possibility of accidental procreation from these unions in approximately zero. No, Charles Cooper’s argument was that marriage was the state’s business, since a child would become a ward of the state if not properly raised by the state-channeled loving union of its own procreative natural parents. Therefore, no gays!

Got it? No, me neither.

Of course, this wasn’t the Prop 8 folks’ first argument, promulgated in 2008 during their barely successful campaign to strip civil rights from their fellow citizens. That winning proposition was that your kid would come home from school knowing how to give blowjobs (boys only) or perform cunnilingus (just for girls) since gay sex would become mandatory kindergarten fare. Princes marrying princes! Princesses marrying princesses!

In between, they’ve been equally creative.

Teens would become gay if they knew marriage equality was the law; their experimentation would lead to permanent choice of a gay lifestyle. Parents will lose the right to tell their children about permissible sexual or romantic arrangements. Heterosexuals would feel their own marriages were somehow less than if they had to share the institution with gays. This would mean the marital vows would be less strong and more frequently violated.

The promiscuity of the gay male, once he could marry, would lead to the promiscuity of all married males. The lack of a strong male figure at home would mean boys would become ladylike, and perhaps prefer ironing to baseball. Ladies might go back to liking men instead of other ladies, leaving their adopted children in the lurch. Two men aren’t birdlike, or beelike, or something about the bees and the birds.”

Churches would be sued to perform same-sex ceremonies, or at least have to rent their property to allow such abominations. Church schools would have to adopt the mandatory-in-kindergarten gay sex curriculum, or lose their federal education funding. Tax-exemptions would be eliminated for churches that promoted heterosexual-only weddings.

Marriage among heterosexuals would become de-institutionalized by allowing same-sex couples to participate; somehow the already well-on-its-way-to-deinstitutionalization state of the marital institution, treated quite badly by heterosexuals, went unmentioned. Sharing marriage with the gays would make opposite-sex couples see it as even less honorable than they see it now, with 50% of their unions eventually splitsville.

(I mean, really!? Could same-sex couples be any worse at marriage than opposite-sex couples? Could the marital institution be treated any worse than it has been as an opposite-only operation? It’s hard to imagine; heteros are batting .500 at best.)

Pastors would be arrested for hate speech for reading Leviticus from the pulpit. Cities would seize church property if they didn’t hire drag queens to teach Sunday school. Church picnics would mandate non-gender-determinate garb. Sunday school teachers would need to become fellatio (for boys) and cunnilingus (for girls only) training specialists, because five days a week in public school just isn’t enough.

Pastors would be required to marry dudes to their dogs. And ladies to their kitties.

Life as we know it in America would come to an end.

And yet, despite the heavenly chorus down the millenia calling out for traditional marriage values, for preserving this sanctified marital bond as between only one man and one woman (as they claim, incorrectly, it has been throughout human history) the Defendant-Interveners’ Counsel never was able to rebut, argue, or present evidence to counter the central argument put forward by Plaintiff’s Counsel Theodore Olson: the Supreme Court of the United States has, fourteen times since 1888, defined marriage as a fundamental individual civil right in America and — in Lawrence v Texas — then further defined intimate relations between two people as protected by their fundamental right to privacy.

How, then, Ted Olson asked, can the intimate expression of that protected private right result in the state’s withholding of the fundamental marital bond? It can’t. It especially can not withhold a right when no harm, or possible harm, has been shown.

No harm ever was shown, despite the wildly shifting claims I’ve cited above.

Counsel for the Defendant-Interveners, despite all their predictions of a vastly changed American moral landscape when marriage equality is again permitted in California, cannot explain why the state must withhold the fundamental marital right from those whose private expression of it differs from the majority’s.

In fact, they never even tried.

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