The legal team defending Proposition 8, California’s ban on same-sex marriage, has submitted a reply brief, a final written argument before next week’s oral arguments at the Supreme Court. The brief reiterates many trite arguments — notably, that opposite-sex marriage can only be defined as “man and woman” because it is important for “responsible procreation,” a rationale that simply dismisses how all the same-sex couples raising children would benefit from marriage.
Obviously, this argument is quite weak because it does little to account for why the government still allows opposite-sex couples who cannot have children to marry. However, this brief offers an outrageous new argument that attempts to justify this inconsistency:
Even if some society (implausibly) desired to mandate that all married couples be willing and able to procreate, such a policy would presumably require enforcement measures — from premarital fertility testing to eventual annulment of childless marriages — that would surely trench upon constitutionally-protected privacy rights. And such Orwellian measures would be unreliable in any event. Most obviously, many fertile opposite-sex couples who do not plan to have children may have “accidents” or simply change their minds. And some couples who do not believe they can have children may find out otherwise, given the medical difficulty of determining fertility. Moreover, even where a couple’s infertility is clear, rarely are both spouses infertile. In such cases, marriage still furthers society’s interest in responsible procreation by decreasing the likelihood that the fertile spouse will engage in sexual activity with a third party and by strengthening the social norm that sexual relationships between men and women should occur in marital unions.
Just to spell this out: marriage is apparently good for couples who can’t have kids because the still-fertile partner will be discouraged from cheating because of the chance for accidental pregnancies. This assumption that monogamy is based only on “responsible procreation” is insulting to all married couples regardless of their fertility, in addition to being silly and somewhat sexist too. Moreover, it completely compromises the very arguments proponents are trying to make. However they may be defining “responsible procreation,” caring for a child is not the same as being sexually monogamous. They have basically admitted that marriage is about a committed relationship and a family unit, as opposed to just making sure the source of the sperm doesn’t abandon the host of the egg it impregnates.
Of course the primary argument in this paragraph is problematic too. When it comes to marriage, proponents are happy to give the benefit of the doubt to opposite-sex couples who may be infertile so as not to impose on their right to privacy, but no such benefit can be offered to same-sex couples who are already raising children. As always, the implication is that biology trumps all other qualities of parenting, an insult to all couples who raise children through adoption, foster care, or surrogacy, regardless of their sexual orientation.
It’s amazing how far opponents of equality will bend over backwards to make sense of their own justifications for discrimination. They don’t seem to care how many families they insult in the process.
(HT: Kathleen Perrin.)