CNN reports that in today’s session, Justice Kagan and the attorneys for Prop 8 had the following exchange.
“Mr. Cooper, suppose a state said that, because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55,” Kagan asked. “Would that be constitutional?”
“No, your honor, it would not be constitutional,” Cooper answered.
I’m so frustrated by Cooper’s answer (assuming CNN reported this in full). Why is this SO difficult to understand? Of course the restriction would be unconstituional…because it is irrelevant. We can allow infertile and post-menopausal couples to marry because allowing them to do so does not make saying that “a child has a right to a mother and father” discriminatory. If such a couple were to adopt, for example, that child would still have a mother and a father.
As soon as you claim that homosexual marriage is equivalent to marriage, then you must agree that both kinds of couples are capable of giving the same benefits to any child they might have. If you agree with that, then it immediately becomes discriminatory to say that the child actually receives something different from a mother and a father. It is discriminatory, because a homosexual couple cannot give a child a mother and a father and to say that a child needs a mother and a father is to say that a homosexual couple is somehow less than a heterosexual couple. You can’t simultaneously say that that two things are the sameanddifferent.The problem is that all the data shows that children receive important benefits from mothers and fathers and that the absence of one or the other has consequences. That is not the same as saying that gay people are automatically bad parents or that children raised by gay people are doomed to be axe murderers. BUT that is to say that if the best homosexual parents are compared to the best heterosexual parents the children of the heterosexual parents will be receiving benefits the children of homosexual parents can never have. That is unjust. It is unjust to give a child the chance to have everything but. Children deserve to have the right to everything society can give them to achieve their full potential.