 Let me throw in a question here Assume I agree with you that the state's interest in marriage is essentially procreative How does permitting same-sex marriages impair or adversely affect that interest your honor that gets to the fundamental disagreement there? They say that it's not enough for opposite sex Unions to further and advance these vital state interests that we have to prove that Including same-sex unions into the definition of marriage would actually harm those purposes and interests that is not Equal protection I am asking you to tell me how it would harm opposite sex marriages. All right All right Let's play on the same playing field for once. Okay? Your honor my answer My answer is I don't know. I don't know does that mean Does that mean if this is not determined to be subject to rational basis review you lose? No, your honor Just haven't figured out how you're gonna win on that basis yet your honor By saying that the state and its electorate are entitled when dealing with radical proposals for change to move with caution Keep in mind this same-sex marriage is a very recent innovation its implications of a social and cultural nature Not to mention its impact on marriage over time can't possibly be known So this is a political question and the court should abstain is that it? Mr. Olson Often quotes the Supreme Court statement that marriage creates the most important relation in life that quote Comes from the Maynard case and the Maynard court explained why the institution of marriage is uniquely Inbued with public people get married to benefit the community your honor When one enters into a marriage you don't say oh boy, I'm going to be able to benefit society by getting married What you think of is I'm going to get a life partner Yes, your honor somebody that I can share my life with maybe have children But all sorts of things come out of a marriage Yeah, but if you but is this the purpose of marriage for individuals individuals to benefit society well It may well be that individuals who get married aren't doing it in order to benefit the community Although that is the ultimate result of it, but the question has to be what well Why does the government? Regulate this relation. That's a good question. Why doesn't it leave it entirely up to private contract? Yeah, it is because this relationship is crucial to the public interest because your honor the pro-creative Sexual relation is an enormous benefit to society and it represents a very real threat to society's interests a Threat a threat a threat in the sense that to whatever extent children are born into the world without This stable enduring marital unit and and and raised by both of the parents that brought them into this world Then a host of very very negative social implications arise But the state doesn't withhold the right to marriage to people who are unable to produce children of their own Are you suggesting that the state should? No No, your honor. No, it is by no means a necessary of a necessary Condition or a necessary require well then the state must have some interest wholly apart from procreation your honor Isn't a necessary requirement that the state actually insist that individuals who get married to have children or be able to have children How how would it go about administering such a requirement? It would be Have to have a pre pre pre marital fertility testing some kind of pre marital pledge in which the couple found to be Fertile some kind of intrusive process also pledge to actually have children Your honor I these kinds of orwellian or or well it is orwellian But isn't that the logic that flows from the premise that marriage is about procreation? It is enough if the state or the society seeks to attempt to ensure and increase the likelihood Really, that's what it boils down to increase the likelihood that naturally Procreative sexual relationships will take place in an enduring and stable family environment for the sake of raising children Isn't the state indifferent with respect to how the child was conceived the state and every state and every society for the millennia Your honor has attempted to channel Naturally procreative sexual conduct between men And women into an enduring stable union for the sake let's move on from the millennia to the three weeks of in january when we had the trial What does the evidence show? Thank you. Thank you your honor. I I I believe the evidence shows Overwhelmingly that this interest in what many call and and the united states congress calls Responsible procreation is really at the heart of society's interest in regulating marriage Okay, because for example what the evidence shows is that image just what was the witness who offered the testimony? What was it and so forth? Yes, your honor uh Sociologist kingsley davis has described the universal societal interest In marriage as recognition and approval of a couple engaging in sexual intercourse and marrying and rearing offspring Blackstone your honor said that there are two great relations in private life first that of husband and wife I don't mean to be flipped, but blackstone didn't testify Kingsley davis didn't testify What testimony in this case supports the proposition, but your honor you don't have to have evidence for this from these authorities This is in the cases themselves. I don't have to have evidence You don't you don't have to have evidence of the of this point if one court after another your honor Most courts most of the courts at least two-thirds your honor or or just approximately anyway Two-thirds of all the judges that have looked at this issue before you have have upheld the traditional or would have Would have upheld the traditional definition of marriage on this rationale this this this rationale And the plaintiffs say there is no way to understand why anyone would support proposition eight except through some irrational Dark motivation some animus some some kind of bigotry your honor That is just not only a slur on seven million californians who supported proposition eight It is a slur on 70 out of 108 judges who have If you have got seven million californians who took this position 70 judges as you pointed out And this long history that you have described why in this case did you present but one witness on the subject? One witness