MARRIAGE AND PROCREATION: Jonathan Rauch replies to Maggie

[Note: For reasons that probably only make sense in the Bizarro World that is Blogger, this post didn't publish the first time I tried to put it up. See it again for the first time! (And my apologies for the confusion.) --Eve]

Justice Robert Jackson: "There is no more effective practical guarantee against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally." (Concurring, REA vs. NY, 1949)

Justice Antonin Scalia: "Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me." (Cruzan v. Missouri Dept. of Health, 1990)Everyone rightly accepts as a core premise of liberalism that the majority can't keep two sets of books, one for itself and one for minorities. Anyone in American politics who flouts this principle will, eventually, lose, and will deserve to. It seems to me that opponents of same-sex marriage should just relinquish the argument that marriage is only for procreative couples (if that's what they mean by "marriage is for procreation," which can mean a number of things).

Historically and empirically the argument is incorrect: marriage has everywhere and always been for both procreative and nonprocreative couples. This is not a technicality or a grudging exception. All societies celebrate when post-menopausal women marry. They recognize that banning such marriages would do nothing for children or procreation.

Even if the allowance for (millions and millions of) heterosexual nonprocreative marriages were a loophole or an exception, the exception should be applied evenhandedly, not selectively or self-servingly by and for the people who have the votes. See Mr. Justice Jackson, above. If the rule is that only fertile couples can marry, fine. If the rule is that only couples who actually have biological children can marry, fine. If the rule is that only couples who are rearing children (bio or non-bio) can marry, fine. Well, not fine, but you get the point: the rule that infertility disqualifies all gay couples from marriage but disqualifies no straight couples is a crass double standard that demolishes the very principle (marriage=procreation) on which it's supposed to be based.

Andrew Sullivan backhandedly praises Allan Carlson for showing some consistency. Carlson really does want to prefer procreative couples throughout the whole domain of marriage, rather than merely where gay couples are concerned. This shows commendable integrity, in the putting-money-where-mouth-is department. But it won't go down well with values voters (or anyone else).

I think there's a better way to put the discussion on coherent ground. I'm admittedly not the best person for SSM opponents to take advice from, but, as I say, they should just drop the claim that marriage is only for procreative (fertile) couples. Give it up. Throw it away. They would be better off talking about a stronger, if subtler, kind of argument that Maggie and Eve, among others, have made: marriage valorizes mother-father families and this serves crucial social goals. I disagree with that argument, but it is logically tenable and not hypocritical, because it grounds marriage in gender difference rather than in procreativity. On that we can have a coherent debate that respects liberal principles.

An aside by way of reply to Justin Katz, who says that A. Sullivan makes the case for the Federal Marriage Amendment. Andrew can best speak for himself, but I understand him to be talking specifically about Goodridge, where the state of Massachusetts grounded its opposition to same-sex marriage in gay couples' inability to procreate. There may be (in fact, are) good arguments against court intervention (legal, social, political, etc.), but "Marriage is only for procreative couples" can't possibly be among them.

posted by Eve at 9:00 PM | link

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