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An attorney for the city of San Francisco started a law school event on same-sex marriage last week with due process and equal protection arguments. Little more than an hour later, Chief Deputy City Attorney Therese Stewart was looking exasperated, pointing out that “crackheads” and child molesters can marry, and calling her opponents’ arguments, “in non-legal terms, baloney.” The five-person debate hosted by a Hastings College of the Law publication Friday — a day shy of the one-year anniversary of the first gay weddings at San Francisco City Hall — began heating up when talk turned to whether the state’s ban on gay marriage is meant to encourage population growth and good parenting. A round of applause broke out when a law professor — who clearly favored same-sex marriage — said the “other side” hasn’t articulated what gay couples should do if they can’t marry. “There are 10 million people who are trying to figure out how to lead their lives,” said Tobias Wolff of UC-Davis’ King Hall School of Law. Alliance Defense Fund senior counsel Jeffrey Ventrella, whose organization has been arguing to keep the laws as they are, cautioned the audience of roughly 100 not to be wooed by Wolff’s “appeal to emotion.” Both he and Pepperdine University School of Law professor Douglas Kmiec argued that laws limiting marriage to a man and a woman further compelling state interests. “We are confronting in the industrialized society a worldwide under-population crisis,” Kmiec said. Though the state can’t ask couples who want to marry if they’re fertile or intend to have children, it can base policy on common-sense biology, he added. That comment brought a challenge from Hastings professor Vikram Amar. If the marriage laws are really meant to encourage procreation, the state could do more without prodding individual couples, he said. “If a state passed a law that women over 70 years old can’t marry — would that fly?” Kmiec, stumped, opted for flattery, saying that Amar is clearly at a top law school “because he just thinks of those niche hypotheticals that make me squirm.” But Ventrella had a comeback. An age ceiling wouldn’t be a good idea, he indicated, because “a 69-year-old Romanian professor just gave birth to twins.” He was apparently referring to last month’s reports of a woman thought to be the oldest ever to give birth. (Most reports put her age at 66.)

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