CALIFORNIA RULING: Editors of National Review...But in one respect, Kramer goes a step beyond Massachusetts. The Massachusetts court considered the claim that marriage might be defined as the union of a man and a woman because marriage has something to do with procreation. It then ruled that since the culture, various pieces of legislation, and previous judicial decisions had weakened the links among marriage, sex, and the raising of children, marriage therefore had nothing to do with procreation and any features of the marriage law premised on a contrary belief had to go. The reasoning was specious: From the premise that the law and the culture contain inconsistent views of marriage, it does not follow that the court should resolve the inconsistency by throwing out those elements it dislikes.
Kramer, however, did not even perform this perfunctory analysis. He merely 1) finds that the California courts have not recognized procreation as a purpose of the marriage laws, 2) observes in passing 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," and 3) finds that procreation is -- therefore! -- not a legitimate state purpose. One would think that even a proponent of same-sex marriage would want to do better than that. Under any set of marriage laws, the fit between the laws' purpose and the eligibility criteria they establish will be somewhat loose. Are the laws there to promote loving relationships? Well, the law doesn't require that the partners in a marriage love each other. Do they promote the formation of stable households where the partners look out for each other? Well, not every married couple lives together, and it is an "obvious social reality" that not every cohabiting couple is married. This kind of pseudo-rationalism would undermine any marriage law at all.
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