No Reasonable Chance of Pregnancy
I got a comment to this post that I found curious. Someone else wrote an excellent, succinct response to it, but since I'm never one to let a brief word suffice when I can turn it into a tome, I wanted to write my own thoughts. They're lengthy enough that I'm going to make it a separate post instead of a comment.
Dr. Don wrote re: the Washington state initiative to make marriage only valid between couples who produce children:
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.
This argument made me think of a battle I once had with my insurance company. Ten years ago, my husband and I underwent several infertility treatments, some of which were explicitly covered by my health insurance, and some of which were explicitly not covered. We submitted a routine request for one of the procedures they did cover, and were denied because we'd "reached our limit of 6 cycles." Except that nowhere in my policy did they state there was a 6-cycle limit and they even had some factual errors in listing my visits to the doctor, including one supposed treatment on a date when I was out of town on a field trip with the school I worked for at the time and most definitely not in the doctor's office. So we decided to challenge the denial and went ahead with the treatment, paying for it ourselves while fighting with the insurance company to reimburse us.
I'm sure they had many philosophical reasons for wanting to deny our claim, the most likely one being, "we like our money and we don't really want to give it to you." But none of the reasons they claimed on their several denials were ones that were valid based on my policy—their "constitution," if you will. Eventually realizing that we weren't going to accept invalid reasons, they gave us a denial based on the one thing their policy did state: there's no reasonable chance of pregnancy. Now this is all well and good except for one small issue--by the time we received this denial, I was four months pregnant. With triplets. As a direct result of the procedure they were trying to claim could not reasonably be expected to get me pregnant.
When my husband informed them that I was, in fact, four months pregnant with triplets, their response was that my pregnancy was "irrelevant." Okaaaaaaay. Since I'm not the Virgin Mary, I would have to argue that the indisputable fact of my pregnancy was actually fairly compelling evidence that I had done something that could be reasonably expected to result in pregnancy and was therefore very relevant.*
It strikes me that the argument against same-sex marriage is very similar. There are lots of philosophical reasons for not wanting people to be able to marry someone of the same gender, but as far as I can tell, they boil down to "because I think gay sex is icky" and "because I believe my God is against it." The problem with these beliefs, important as they might be to the individual who holds them, is that they are not valid legal reasons. I think the idea of my parents having sex is icky, but I'm pretty sure that's not a good enough reason to legally bar them from doing so. And the First Amendment guarantees our right to not have the government promote one religious viewpoint to the exclusion of others, so "because I believe my God is against it" doesn't work either. Therefore, just as Dr. Don states, those who oppose same-sex marriage have to come up with a reason that will hold up in court. Like my insurance company, they latched onto the one thing they could think of that would work: no reasonable chance of pregnancy. Only they had to take it a step further because, hey, look, Mary Cheney! Proof that lesbians are, in fact, able to get pregnant. And I'm sure there are many examples of gay men successfully impregnating women, so it isn't just that gay people can't have children, it's that same-sex couples can't create children with each other. Mary Cheney was not impregnated by her partner, Heather Poe, and no gay man to date has managed to impregnate his male partner. Pretty much a given. So the argument is that the state has a compelling interest in "furthering procreation" between married couples, so much so that this is reason enough to deny same-sex couples marriage licenses because clearly they cannot procreate with each other.
If this is true, if the state really has a compelling interest in "furthering procreation," then the initiative to annul any marriage that does not produce children within three years is no more irrelevant than my pregnancy was to the issue of whether or not I could reasonably be expected to get pregnant. If that's the reason that Washington's Defense of Marriage Act (DOMA) was upheld, then it is only logical to conclude that all marriages that do not produce children to which both partners are biological parents are contrary to the state's "compelling interest." If Joe and Bob shouldn't be married because they can't produce children without the help of a third party, then by God, Joanne and Bob should have the same rules applied to them.
Obviously, everyone agrees this is ridiculous. As one supporter of Washington's DOMA argues, they "have never said that the sole purpose of marriage is procreation." Then what are its other purposes, and why can't they be applied to same-sex couples? You'd think that in the three years I've been actively involved in marriage rights—not to mention the fact that I come from a family of intelligent, articulate people who are all against same-sex marriage—that I would have heard some of these great arguments as to why the state has a compelling interest in restricting the rights and responsibilities of marriage to opposite-sex couples. And yet I haven't heard a single one. Not one reason that doesn't boil down to "it's icky and I believe my God is against it." In fact, my father—adamantly opposed to same-sex marriage—doesn't even try to argue that there's a good reason for the state to decide who can get married and who can't. He proposes that the state should get out of the marriage business all together and leave it to the religious institutions. The state can then grant the legal rights and responsibilities of "unions" to couples separately from their status as "married" in the eyes of their church. This plan, which is basically how the U.K. handles marriage, makes a lot of sense to me. Then arguments about whether a given couple should be married or not would happen within individual places of worship, where the argument "because I believe my God is against it" rightly belongs.
But given the fact that our society blurs the boundaries between the religious sacrament of marriage and the legal rights and responsibilities of couples who are committed to one another, there is no good legal reason for the state to deny benefits to some that it confers on others. And Dr. Don's argument that it's okay to claim one reason in the legal briefs just because your underlying philosophical beliefs won't hold up there strikes me as disingenuous.
Kinda like telling a woman who's four months pregnant with triplets that you really don't think there's a reasonable chance that she could get pregnant.
*The insurance company eventually decided (after our lawyer threatened to involve the media) that perhaps the fact that I was four months pregnant with triplets was relevant after all and they reimbursed us for the procedure.