Over on MarriageDebate.com, Jonathan Rauch and Maggie Gallagher are debating SSM. Go here and then scroll upwards to read the ongoing debate. Here’s a quote I liked from Rauch; it makes a point we’ve all heard made before, but it makes it particularly well:
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.
Rauch suggests that SSM opponents should move to a different argument:
I agree that the “marriage valorizes mother-father families and this serves crucial social goals” – which is essentially the argument Elizabeth was making - is a stronger argument than the ridiculous “marriage is about reproduction, so non-reproductive couples can’t marry, unless they’re heterosexual in which case forget the whole thing” argument. However, the “valorizing mother-father families” argument naturally raises some questions:
- Why is it acceptable to oppose same-sex civil rights in the name of valorizing mom-dad families, but not acceptable to oppose the civil rights of heterosexuals for the same purpose (i.e., by banning divorce or returning to coverture laws)?
- Is promoting a particular ideology of gender relations a compelling government interest?
- If so, is banning marriage equality the least restrictive means of furthering that compelling government interest?
- Is injustice to a minority justified if the injustice sends a valuable message or valorizes a social good? Would unequal laws against blacks or women or Catholics be justified, if legal inequality against these groups sent a valuable message?
- If it were practically viable to do so, ought we forbid cross-dressers of either sex from marrying, in order to promote “correct” gender-role ideology? How about effeminate men and butch women?
- How does transsexuality fit into this? Should transsexuals be barred from marriage altogether, since no matter which sex they marry, it can be construed as in some way questioning “correct” gender-role ideology?
More and more, it’s becoming clear that the debate over same sex marriage is a debate over the right of conservatives (mostly, but not entirely, Christian fundamentalists and right-wing Catholics) to put the force of law behind their particular gender ideology. Historically, this is the same debate that feminists have faced since feminism began; the people opposing SSM are the ideological heirs of the people who opposed allowing women to attend college, to vote, and to own property.
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There’s also an interesting debate between Mark Barton and Eve Tushnet. It’s hard to know where to start, but here’s a good place; scroll upwards. Here’s a quote from Mark I enjoyed.
Mark: Having put the original procreation argument to bed, let’s turn to what is the independent argument in terms of childrearing. This was the secondary argument in Goodridge. However I’m afraid I don’t think that in 2004 we’re obliged to respect as serious Eve’s presentation of it above.
The issue has been studied. We have actual data. The studies are by no means the last word, but neither are they junk. Opposite-sex and same-sex couples cannot be credibly described as having “obviously a fairly large difference in kind” with respect to parenting outcomes any more than blue-eyed couples versus brown-eyed ones. Now of course Eve is welcome to invoke caution and argue that there might be small but important differences, or large differences in variables that haven’t been studied, but I think at this stage of the game “obviously” and “large” should be considered beyond the intellectual pale.
The “people who can’t procreate shouldn’t be allowed marriage, unless they’re heterosexual people in which case never mind” argument is, I think, on its deathbed. Probably most of the people who are now saying that this argument is essential will have migrated away from it a year or two from now.