TAKING EXCEPTIONS: Eve replies to Andrew Sullivan

Okay, as you might guess, I have a bunch of problems with Sullivan's recent post on procreation and marriage and stuff. I could yap about how procreation is obviously not the sole guiding standard of marriage law, since, if it was, polygamy would be a-okay (boy can those folks procreate!), so perhaps something more complex is going on, hmm? I could growl about Sullivan's interpretation of rational basis review as a license to erase any law that doesn't make sense to a majority of the New York Times editorial board or the faculty of Harvard Law. But whatever. These things bore me. I want to talk about a methodological problem with Sullivan's approach, which I haven't seen other people address yet. Warning: rambling ahead, more questions than statements.

Sullivan basically says, If marriage were really "about" procreation in some interesting sense, we wouldn't let people marry unless they could prove they were able and willing to procreate. Let me quote: "Maybe these non-reproducers can have civil unions until they reproduce. Maybe they can get married, but have their licenses revoked after five years if no babies are forthcoming." Earlier, Sullivan notes that "civil marriage is available to any straight couple, regardless of their willingness or ability to have children."

But this same approach could "prove" that marriage isn't really about care, or sexual fidelity, or personal loyalty, in any interesting sense, given that we obviously let couples marry with no proof of any of the above, and even in the teeth of the evidence. We don't forcibly divorce or annul marriages where one partner can be shown to be unfaithful, uncaring, or disloyal. Civil marriage is available to any man/woman couple, regardless of their willingness to be faithful, care for one another, or even have sex.

How much can exceptions teach us? If we look at what you can get away with under the law, how much does that really tell us about what the law ought to be or how it ought to approach new cases and questions?

Would same-sex marriage be just another exception? What about other "expansions" of the marriage right, like (again) polygamy? Presumably most people wouldn't want it. So would it be just another exception?

In order to answer these questions, I think we have to a) figure out what marriage is for, not what you can get away with under the law (since surely marriage has a purpose beyond the circular "some people want to get married!"); b) realize that the law is never going to perfectly map onto culture or ideals, but it does shape culture and ideals; and c) recognize that marriage law has more than one element and purpose, but some elements are more essential than others.

posted by Eve at 4:20 PM | link

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