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Home / courts / Gays can’t have kids, shouldn’t be allowed to marry, Arizona attorneys argue

Gays can’t have kids, shouldn’t be allowed to marry, Arizona attorneys argue

same-sex-gay-marriage-620Attorneys for the state are telling a federal judge there’s a good reason Arizona won’t let gays marry: They can’t reproduce, at least not without the help of a third person.

Papers filed in federal court defending the ban say voters, in approving the constitutional amendment in 2008, are entitled to “define marriage for their community.” But the lawyers also are arguing to U.S. District Court Judge John Sedwick there’s a public purpose in the state getting into the business of regulating private relationships: Ensuring that children are, whenever possible, raised by a biological mother and biological father.

“Only man-woman couples are capable of furthering the state’s interest in linking children to both of their biological parents,” argued attorneys from the Alliance Defending Freedom. And they said the vast majority of such couples produce their own biological children.

But gay marriages, the lawyers said, “do not advance that compelling state interest” because they “can never provide a child with both her biological mother and her biological father.” About the closest they can come, the legal papers argue, is by involving a third person who will be a biological parent.

While the lawsuit is against the state, the case is being defended by the Alliance Defending Freedom, a self-described “legal ministry” formed by Christian leaders to advocate for religious liberty and marriage. Attorney General Tom Horne agreed to let that organization take the lead, naming their lawyers as special assistant attorneys general.

Among arguments by challengers is that the procreation argument holds no water, at least in part because the state recognizes marriage between couples who are infertile or do not wish to procreate. But that, the defense attorneys argue, is irrelevant.

“For instance, many man-woman couples who do not plan to have children may experience unintended pregnancies or may simply change their minds,” the legal brief says. It also says “modern medical advances” might affect otherwise infertile couples.

Anyway, ADF attorney Caleb Dalton said the state has to start from the premise that heterosexual couples have the potential to produce children.

“It would be impossible, absurd even, for the state to mandate fertility testing or something for a marriage,” he said. “That would probably violate the Constitution right there.”

Yet Arizona has, in fact, sanctioned marriages designed specifically not to produce children: A state law lets first cousins marry if both are at least 65 years old or if proof has been presented to a judge that one of them is unable to reproduce.

But Dalton said allowing such marriages reduces the risk that one of the partners will have a child out of wedlock with someone else.  “It helps bind them together in a union,” he said

And while the ADF brief mentions possible scientific advances that might allow infertile couples to reproduce, Dalton brushed aside as a “far-fetched hypothetical” questions of whether his arguments fall apart if science allows two women, each with her own egg, to form a child.

This lawsuit is one of two in front of Judge Sedwick challenging both the 2008 voter-approved state constitutional amendment and a statutory ban which existed for years before. Attorney Shawn Aiken, representing four couples, charges the ban is “arbitrary and invidious discrimination.”

The lawsuit has a fallback position of sorts: Aiken argues that, if Sedwick won’t allow gays in Arizona to wed, he should at least force the state to recognize same-sex marriages performed legally elsewhere for people now living here.

A second lawsuit has been filed by Lambda Legal Defense and Education Fund with similar arguments. But that case has some broader claims including the right to be recognized as a parent and inheritance rights.

Sedwick is not likely to rule in either case until the 9th U.S. Circuit Court of Appeals makes a decision on similar lawsuits from other states where trial judges already have ruled. The appellate court has scheduled arguments on three of those cases – from Hawaii, Nevada and Idaho – for September.

24 comments

  1. Maybe the problem with our culture isn’t that gays want to get married, but that heterosexuals have reduced marriage to popping out babys

  2. so…by this logic, my boyfriend and I should not be allowed to marry, since I both had my tubes tied 24 years ago, AND am 10 years past post-menopausal, and my BF had a vasectomy years ago too…so we CAN’T have any children either. Also, no woman who has had a hysterectomy should be allowed to marry…or any man who has had testicular cancer to the point of not being able to produce sperm…etc etc etc. So, in other words, ALL people must undergo fertility testing to prove they are able to bear children, before being allowed to marry?

  3. The fact that Arizona actually has a law defining when first-cousins can marry confirms my suspicion that Arizona is Mississippi’s ******* child.

  4. I had no idea that Arizona (or any other state, for that matter) has banned the elderly, the infertile, or those not wanting children, from being able to marry. Oh, right. They haven’t.
    I can’t wait for the ADF to tell Betty White that she doesn’t have the right to get married because she can’t kick out the next generation.

  5. Actually, I could reproduce just fine in a gay marriage, being a non-op trans* guy. Get with the program, AZ! Anyone with a speck of reason knows these are the dying gasps of an antiquated prejudicial system.

  6. What next? A fertility test as a pre-requisite for marriage? How about a statement of intent to procreate as a condition for marriage? Will older couples beyond their child-bearing years be allowed to marry? Will couples who are unable or unwilling to conceive be forced to divorce? Same-sex couples may not be able to reproduce with their partner, but they can certainly conceive (in the case of lesbians) or impregnate a woman (in the case of gay men) as a surrogate, and they can certainly adopt an orphan child.

  7. ADF once again sets a different bar for gays than for straights. How has that argument worked in all of the other cases in which they’ve participated.

  8. This argument has been shot down time after time and is, in effect, the paradigme of disparate treatment because, if procreation was the threshold requirement, then infertile or non-child-wanting couple would HAVE to be denied marriage as well. What a bunch of buffoons!

  9. There is no fertility test when you apply for a marriage license.

    Arizona tax payers are paying fundamentalist Christian lawyers to defend a type of law that has now been found unconstitutional in over 20 federal courts.

  10. Marriage has already lost all meaning when a state’s attorneys argue that it amounts to nothing more than women being used as baby factories. If the marriages of a few gay couples threaten to ‘destroy’ or ‘redefine’ that, then bring on the gay marriages.

    What will the Arizona attorneys be arguing next?
    That all newlyweds be compelled by force of law to 1: Have sex continuously until a pregnancy is confirmed. 2: Do so under the supervision of state legal and medical professionals as witnesses. 3: Repeat sexual intercourse soon after giving birth to a child to ensure another pregnancy. 4. Suffer strict criminal penalty (fines/jail time) for failing or refusing to comply.

  11. Senior citizens can’t reproduce. Barren women and sterile men in heterosexual relationships cannot reproduce. …ummm… I’m really interested to see them block those marriages as well. If this is seriously their defense then Sun City (suburb of Phoenix) should be vacated and housing should be provided for people who can reproduce and all the seniors and sterile individuals should be extradited to another state. Correct? I think not. Thanks for playing, Arizona law makers, but you failed once again. I’d encourage you to view the transcripts or review the tape logs of the Supreme Court hearing that took place a few years ago regarding federal rights for homosexual couples because this EXACT argument was shut down very VERY quickly. Idiots.

  12. Well I am a proud gay man have been happily married with my husband for almost 18 years and we have 6 Beautiful children inside and out as well as 7 grandchildren. So you cannot tell me that I cannot be a parent of any kind.

  13. More uneducated trash from Alliance Defending Fascism (aka Alliance Destroying Freedom) whose employee Lisa Biron forced her underage biological daughter to do child porn.

    Marriage has NOTHING to do with reproduction. Heterosexual couples who cannot or do not want to reproduce or raise children can still marry in the eyes of the law. So no reason to ban gay couples who can and do legally have and raise children through adoption and/or surrogacy/in-vitro. There is NO legal requirement 4 government granted marriage stating a couple have the ability or desire to have/raise children. So no reason to ban gays. Hetero parents, not gay ones, are the reason why there are thousands of kids in America who have NO parent(s). Gays fix that issue which is a financial and social burden on on country. Anti-gay parents, not gay or pro-gay ones, are the reason there are thousands of homeless LGBT kids in America struggling to survive on the streets eating out of garbage cans, doing and dealing drugs, prostituting themselves just for place to sleep and something to eat. Which is again a financial and social burden on our country out on on our country because of anti-gay dross. There are MILLIONS of kids being raised by two dads or two moms in American. This ship has sailed. GET OVER IT and stop harming those families with Heinrich Himmler inspired “take the children away from parents we deem inferior” propaganda filled agenda threatening the millions of LGBT families in this country.

  14. Oh man. I’m making popcorn for this one. The ADF themselves standing in a court of law to defend these unconstitutional bans, using arguments ripped from the National Organization [against] Marriage’s press releases. Nowhere will you find a more full-throated defense of the creme dela creme of anti-gay marriage arguments than from the ADF.

    And they are going to burn down in flames!

  15. I am sickened by this because my partner and I have put our lives on hold to wait for this state to get into the swing of things. First of all, I am already a parent to two children who I share joint custody with with their father. There is nothing abnormal about my relationship with my children. My partner and I want to get married so that we have something to pass on to the future. To also secure our assets and make sure the surviving person is taken care of just like everyone else who is able to marry. I think it is pure **** that the only people who can marry are those that can produce children. But haven’t you been watching the news. If I am not mistaken the amount of unwanted children by heterosexual couples because of infidelity and laziness is growing. Or what about all the straight parents popping out kids who leave them in cars or allow them to wander into the streets as infants? what about kids that are having kids who don’t have jobs, aren’t responsible to take care of themselves. honestly, I think it is another ploy for the government to control the population and corrupt them into robots who believe in just what they want them to believe. Lets give them a minimal education and tell them you can only marry to have babies. This is the america we live in.Geez.

  16. So, children who have a step-parent (due to divorce, death, or out of the picture parent), or children who are adopted by hetero couples are not able to fully grow and develop because they don’t have both biological parents, rather than simply a family that loves and supports them? Then half or more of the country is screwed anyway.

  17. Well, there’s some of that gol darned logic stuff, huh?
    So in the silly minds of these lawyers, no one who is post menopausal is allowed to be married and all couples whose wife enters into menopause may never have sex again. I am CERTAIN that is how it is practiced in these Fundie households! Not.
    lunacy

  18. I do not agree with this one bit! Yes, I am a gay male, but that is not the only reason why. You see society having kids and giving them up for adoption or worse, aborting them…. homosexual couples can and would be willing to adopt them. Now in days, children are being raised by one parent anyways. So what is the difference? I would rather an innocent child be raised by a homosexual couple, rather than 1 heterosexual person. I know many homosexual couples who have raised children, and the children are just fine. Actually, I think the children act better than single parent children. Don’t get me wrong, there are some outstanding parents out there, and I praise them for having the strength, courage, and knowledge or raising children on their own. But a homosexual couple is just as capable!

  19. Well, it is in Arizona, the most hate-filled, bigoted state except Texas. Actually, most lawyers should be in prison. They are all dishonest pseudo-criminals.

  20. @Susan:

    In Matthew 19:5 Jesus teaches why divorce is wrong — not about homosexuality or gay marriage.

  21. Today’s Christians have changed their Bibles concerning divorce and adultery and living without benefit of marriage. They love to rewrite to make it agree to how they think.

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