CC,
Your honor, opposing counsel initially identified the issue before us as “whether marriage is a right or a privilege,” and quickly **conceded it **by correctly noting that Loving identified marriage as a “right.” In short, we both agree!
The remaining issue before us is whether procreation is a necessary prerequisite for marriage. Opposing counsel seems that believe it is, citing Skinner, but I can find nothing in his argument to you, your honor, that would support such an incredible and dangerous notion. In fact, as he recognizes, Skinner talked about the right to “marry and procreate” – two distinct rights. Nowhere in Skinner does it say that the right to marry is conditioned on the ability to procreate. If Skinner stood for that proposition, then it would be perfectly constitutional to prevent infertile opposite-sex couples from marrying, which is not a view that I think opposing counsel holds. Certainly, it’s not a view that any court in this country – high or low – has *ever *held. Hence, from the mere fact that same-sex couples can’t procreate, that in itself isn’t any reason at all for denying same-sex couples the fundamental right to marry.
Your honor, to conclude: it appears that opposing counsel has explicitly, and without qualification, conceded the first issue before us. On the second issue, he has utterly failed to support his contention that procreation is a necessary prerequisite for marriage. Accordingly, the case for denying same-sex couples the fundamental right to marry cannot be made on that basis.