The Procreation Question

When you talk to traditional marriage advocates, there is always the procreation question.  That is, allowing gays or lesbians to get married cannot lead to naturally conceived children.  If the only purpose of marriage in this scenario is to procreate, then under that rhubric, only heterosexual couples who can reproduce should be allowed to marry.  So if a couple can't have kids should be forced to get divorced?

As Ann Althouse pointed out, Justice Breyer went after this concept?

In this view, marriage is about children and not adult desire because it is a device to rein in male desire, to keep men from fathering children they aren't going to raise. It's not that marriage can keep that bad thing from happening. It just makes it less likely, because the marriage norm is fidelity.

Obviously, fornication and adultery go on despite this marriage norm, and it's hard to see why letting gay people marry would mess up the norm. I'm trying to picture this man at the heart of Cooper's vision of society: He's true to his wife, because he's gotten the message that's the norm, but if some gay people can marry, then he's going to start cheating, knocking up some other woman, and it's because of this guy that gay people can be excluded from marriage?

What a nutty set of things we're asked to believe! Who the hell is this stereotypical married man, constrained by what other people are forbidden to do? And why should his ridiculous, tenuous connection to norms carry the day? And how can obsessing over what makes him tick work to keep marriage focused on the raising of children and not on the emotional needs and desires of adults? It seems to be all about the needs and desires of adults — really ridiculous heterosexual male adults.

Who are these people?!

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"America’s problem isn’t gay marriage; it’s marriage."

Roger Simon argues that those among the gay/lesbian community who seek to get married are just as bourgeois as those middle class heterosexuals who want to get married.  These are people who are committed to what Simon rightfully calls a struggle to remain committed.  But when so many heterosexuals are calling it quits on marriage (and there are lots of them), conservatives should embrace those gays who want to keep the institution alive.  After all, with some many problems with the institution of marriage in this country, allowing a minority who WANTS the institution in their lives would seem a much wiser course, after all, allowing two gays/lesbians to get married has not impacted at all the ability of two heterosexuals to get married at all.  As Simon notes:

"And guess what — nothing has happened to the institution of marriage, except, sadly, from those heterosexuals deserting it.  And that is clearly not the homosexuals’ fault.....I would remind them to concentrate on the real problem.  Marriage is in serious jeopardy.  Pay more attention to that, not to a tiny minority who seek what you already have."

Important thoughts.

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More on Gay Marriage

I have posted a few pieces on gay marriage on this site and including one before the election on the parade of horribles that a fair number of social conservatives raise when it comes to the issue.  If you are looking for one guy's thoughts on the matter, check that out there.  My thoughts on the legal and moral underpinnings of the "gay marriage debate" have not changed, indeed they have probably become firmer if anything.

But today and tomorrow, the Supreme Court will hear arguments on two cases regarding the gay marriage debate.  Today's case deals with Proposition 8 in California.  Tomorrow's case deals with the Defense of Marriage Act, that rather poorly thought out piece of legislation (the norm for most legislation in the past 20 years out of Congress).  the Prop 8 case is not going to satisfy very many people, other than us geeky Supreme Court watchers because its resolution is likely to turn on procedural matters, such as whether the petitioners have the right to actually bring the case.  Check out this summary from noted Supreme Court practitioner and watcher Tom Goldstein.

The DOMA case maybe different, but even there, I could see the Supreme Court looking for an easy way out, some procedural quirk or some substantive matter that would allow them to dispose of the case without reaching the merits or a ruling on whether gay marriage is constitutionally protected or not.

The fact of the matter is, I don't think that many gays in this country are going to be particularly happy with the rulings on these cases when the opinions come out in June (most likely June).  The fundamental truth is that we are still having a debate in this country.  While my opinions are pretty clear, let me restate them,

I do not believe that the government of any level should have a role in defining marriage other than certain proscriptions--i.e. you have to be at least 18 and matters of consanguinity.  Outside of that, government should get out of the business of saying who can be married and who can't.

But do I expect the Supreme Court to say that this year?  Nope.

And to my dear friends who are hoping for such a ruling, I say this, it must be nice to live in that rosy place.

We should be honest, while I believe the gay/lesbian community is making great strides in making a solid moral and legal case for themselves, I do not believe that these two cases are going to provide any sort of "home run" ruling.  But what must be made clear is my admonition from many years ago.  Whining like a six year old who is denied their favorite ice cream is not going to win any friends.  Take the opinions and then continue your work, because it is not over.

For opponents of gay marriage out there, you too have much to examine.  You too cannot whine about the "decay" of our society if you think two people getting married is worse than two people living together.  If you have a moral and legal foundation, you need to explain it in those terms, do NOT talk about homosexuality as some sort of abomination before God since that comes across as hyocritical--perhaps not to the extent of Christians who kill abortion doctors, but in the same ballpark.

The fact is, I just don't see any sort of "victory" for either side.  In the end, the Supreme Court is a poor arena for this fight.  It needs to be fought in the legislatures, in the neighborhoods and in our own minds and hearts.

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"So as we talk about "marriage equality" between gays and straights, give a little thought to the problem of marriage inequality between rich and poor. It matters, too."

So says Glenn Reynolds in USA Today.

It probably matters far more than whether gays can marry or not.  After all, there are also rich gay people and poor gay people.

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"[A] democracy should not be dependent for its major decisions on what nine unelected people -- from a fairly narrow background, a legal background -- have to say."

Said Justice Anthony Kennedy, a man who sits on the fulcrum of a relatively ideologically divided Supreme Court.


I have an idea.  Maybe the Supreme Court should start kicking cases on the ground of  a "textual committment to a co-equal branch" of government as the political question doctrine stated in Baker v. Carr 369 U.S. 186 (1964).

Seems like the Supreme Court, which has the power to control its docket, could start pushing back on Congress and the Executive Branch to start doing their job instead of punting to the Court.  These are smart people on the Court, surely they could find a reason to return these political cases back to the elected branches and say, "you guys have to figure this out."

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