Monday, February 12, 2007

Calling the bluff

Here's an interesting take on marriage law in Washington State: legally limit marriage to one man and one woman who are able to have children.

Couples would be required to prove they can have children to get a marriage license. If they did not have children within three years, their marriages would be subject to annulment.

All other marriages would be defined as "unrecognized" and people in them would be ineligible to receive marriage benefits.

Clearly this is a ridiculous proposal. I don't think even the most conservative of groups that use language like "children are better off in homes with their married, biological parents" really think couples should not be allowed to be married if they can't or choose not to have children. But it does underscore a significant problem with some of the arguments used to support laws against same-sex marriage. Courts, like the Washington State Supreme Court, have been upholding the constitutionality of Defense Against Marriage Acts (DOMAs) by citing the state's interest in "furthering procreation."

If this is true, if this is really a solid reason why keeping same-sex marriage illegal is in the public interest, then the above initiative makes perfect sense. If procreation is the main reason for marriage, then marriage should only be granted to couples who procreate.

But if this law really is ridiculous, then that means the procreation argument itself is ridiculous. You can't have it both ways.

Good for the Washington Defense of Marriage Alliance for calling their bluff.


At 9:36 AM, Blogger John Wesley said...

Dear and Gentle Reader,

Pardon my intrusion, but I would most like to invite you to visit my humbly journal, as I start my tenure upon this continent. I have been elucidated by your musings and wish to make your most courteous acquaintance whist in the Americas.

I am most curious about the manner in which clergy conduct themselves in the colonies, as I am a newly arrived pastor and do not wish to offend the faithful and the savages. So prithee hense to my journal and let us hold each other accountable in our mutual love of Christ.

I remain God's most humble servant,

John Wesley

At 10:16 AM, Anonymous Anonymous said...

I know that it sounds stupid but I think its just about time we did what Jesus said in the first place Love me, love your neighbour and love yourself.

At 5:40 AM, Blogger mjd said...

Indeed, the proposed initiative is ridiculous as is the state of Washington's interest in furthering procreation. Do you think that opponents of same-sex marriage got the point?

A Bad Methodist in Indiana

At 5:54 PM, Blogger Dr. Don said...

The problem with this argument is that it confuses the reasons for limiting marriage to a single man and woman with the legal arguments that must be made in court.

The reasons why one might support these amendments are primarily philosophical; based on beliefs that have little to do with legal theories and governance. It is these issues that ought to be debated when such amendments are proposed.

However, once the law is passed, our legal system cares nothing for philosophical arguments. The question is simply whether or not the government has the power to enact and enforce such a law. In this case, the state need only show that it has some interest in this area. While "furthering procreation" may not be the best reason, it is certainly a reason.

The law is ridiculous, because it takes a legal position and attempts to build a philosophical position from it. The argument presented by the pro-gay marriage group is a red herring. It says nothing about the core debate. It is clever, but ultimately an irrelevant distraction.

At 1:13 PM, Blogger John said...

I'm opposed to gay marriage, but yes, the argument that gays shouldn't marry because they can't have children naturally is silly.

At 10:29 PM, Blogger TransatlanticGirl said...

Dr. Don--

I honestly don't follow you.

You seem to be saying that there's a whole host of good reasons why gays shouldn't be allowed to marry, but the legal process won't allow you to invoke them, so you have to rely on whatever half-assed reason you can find that *will* be admissible in court.

And if gay groups calls the court on the absurdity of that half-assed reason, then they're clearly just changing the subject.

If procreation is just a red herring, then the court shouldn't be hanging its entire argument against gay marriage on it.

And if your excellent philosophical reasons aren't admissible in court, then perhaps that's because there's something unconstitutional (or at least a-constitutional) about basing laws on them?

And if the best argument that is admissible in court falls apart under close inspection, then what does that tell you?

I don’t know, perhaps I just can’t understand what you’re talking about.

At 12:57 AM, Blogger TransatlanticGirl said...

Further I think it's odd that you say that the State's procreation argument is just a red herring and yet you still defend that procreation argument. So surely you can forgive us for taking the time away from the "real debate" to criticize that same argument.

>>"In this case, the state need only show that it has some interest in this area."

Uh, I'm no law-talking-guy, but I'm pretty sure that's not the only criterion the Court needs to consider. Otherwise, we'd blow up Idaho and corner the market on potatoes--that's in my state's interests too. (Okay, not really--Idaho has some powerful friends.)

What the court utterly failed to do in this instance:

A) Explain how allowing gay marriage will threaten procreation in any significant way, and

B) Provide at least some evidence that the theoretical benefit to society from banning gay marriage is significant enough that it outweighs the very real potential benefit to individual citizens finally being allowed to marry. I see no evidence of any benefit to society at all from the continued ban on gay marriages, much less any that could justify the continued marginalization of a whole group of people.

I'm with you insofar as I think society would indeed be up a creek if procreation ceased altogether, and arguably even if it dropped down to European levels of reproduction (although I think there are others who would be happy to debate that point).

What is thoroughly bizarre and inexplicable is the idea that gay marriage poses any significant threat to current procreation levels: gay people aren't going to physically reproduce whether or not their relationships are legally recognized (although stable married gay couples would provide excellent potential adopters; surely unwanted children finding loving homes instead of being shuttled through the System is also in the state's interest?) Straight people will reproduce or not pretty much as they would anyway--no one's going to be magically struck infertile because somewhere Adam and Steve are filing their taxes together.

I really don't understand the state's "procreation" argument at all, to be honest, and I think it's fantastic that gay marriage groups are highlighting its absurdity.

At 9:06 PM, Blogger Dr. Don said...

Okay, let me see if this makes any sense. There are two different issues of law here. In states where various laws concerning gay marriage have been passed, those laws are just that - the law. The question then becomes whether or not the state has the right to make / enforce this law.

Basically, this comes down to a question of whether the law violates some principle in the state or federal constitution. That is, does this law take a right that is given to the people and revert it to the state? If so, then the law must be overturned. At this point, the reasons that were given for originally seeking the law may or may not be relevant. Often, we see them entirely ignored for some underlying constitutional purpose.

Personally, I find the entire process distasteful.


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