Cooper’s contention is that the State of California has the right to ban same sex-marriage obviously Boies’ argument is just the opposite. My agreement with Boies could not be stronger.
Boies makes an explicit argument that equates Jim Crow and anti-miscegenation laws as being the same as a law banning same sex marriage. In his letter, Cooper attempts to show that the two issues are not analogous. I whole heartily disagree with Cooper.
Cooper asserts that Boies argument only serves to defame “as bigoted not only the majority of Californians, but also the overwhelming majority of Americans.” He writes:
“The traditional definition of marriage has nothing in common with anti-miscegenation laws.”As you read his argument and ponder on the implications that arise from them you can find that similar arguments were made in support of anti-miscegenation laws.
Cooper's argument rests on the belief that same sex marriage is not natural because homosexuals cannot procreate and this change in marriage laws would lead to the downfall of our civilization. He writes:
“It is an undeniable biological fact that only opposite sex relationships naturally, and often inadvertently, produce children. Accordingly, traditional opposite-sex marriages further the fundamental purpose of marriage in a way that same-sex relationships do not. This purpose of marriage goes to the very survival of civilization.”Coopers argument, as I understand it, is that the natural order dictates that only a man and a woman together can reproduce “naturally” and marriage is the institution that can facilitate the development of the offspring to maintain civilization. Ultimately what Cooper is arguing is the demise of our civilization will come if we expand the definition of marriage because justification of homosexuality would eventually lead to a rise in the acceptance of it and the inevitable rearing of children by homosexuals. This argument shuns the scientific consensus that homosexuality is a naturally occurring deviation from the norm. As ridiculous as I find this it is not the problem I have with Cooper’s argument.
His assertion that efforts to ban same sex marriage have “nothing in common with anti-miscegenation laws” is belied by my understanding of his argument and the history of arguments in support of anti-miscegenation laws. Harvard law professor Randall Kennedy details the history of anti-miscegenation laws in his essay “The Enforcement of Anti-Miscegenation Laws.” Kennedy quotes a passage from a letter:
“White race purity is the corner-stone of our civilization. Its mongrelization with non-white blood, particularly with negro blood, would spell the downfall of our civilization.”I am certain that arguments have been made throughout history similar to Coopers. Many changes in society have elicited the cry that society will fail. Arguments have been asserted that civilization began to fall when women received the voting franchise. The same arguments were made in the failed efforts to preserve school segregation.
These argument are based on the fear of the unknown or misunderstood.
On the issue of “judicial activism”, is it the role of the jurist to apply a specific belief as to the definition of our civilization or is the jurist only required to apply our laws to issues, such as same sex marriage? Is it judicial activism to measure our laws against what our constitution allows or is judicial activism to measure laws against our own belief of what civilization should be? I think the former should be path chosen by our judges.
I would hope that courts hear arguments on these laws and decide on the merits of the arguments as they relate to our legal precedent not “age old definitions” of civilization.
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