During Tuesday’s oral arguments about Proposition 8, Justice Elena Kagan challenged attorney Charles Cooper about his claims that procreation is the purpose of marriage. She inquired whether a couple over the age of 55 should be allowed to marry since they could no longer produce a child. Cooper attempted to counter with the absurd argument from his reply brief that men are still fertile and that prevents them from cheating with younger women. Since he didn’t get to fully articulate his point, the Family Research Council’s Peter Sprigg is happy to help him out:
Perhaps Cooper was wary of appearing sexist to Justice Kagan if he stated the truth more bluntly—55-year-old women are virtually always infertile, but 55-year-old men are not. As frustrating as it may be to some feminists, there are some sex differences which cannot be overcome. (Justice Antonin Scalia tried to save Cooper with a joke about Strom Thurmond, the late U.S. Senator who continued to father children well into his 70’s, but it seemed to go over the audience’s heads.)
Society’s interest in promoting “responsible procreation”—the term most commonly used in defending marriage as the union of a man and a woman—involves not just promoting procreation itself, and promoting it in a responsible context (i.e., where the mother and father who make a child are both committed to the child and to each other through marriage). “Responsible procreation” also implies an effort to discourage irresponsible procreation—a quite plausible example of which might be a 55-year-old man going around impregnating fertile women (presumably younger than himself) who are not his wife.
Sprigg does not share Cooper’s concern about appearing sexist. Apparently, the fertility of the marriage is only defined by whether the man can still produce sperm. It also doesn’t seem to matter if women cheat or if men cheat with older women, because cheating only seems to be a problem if it results in “irresponsible procreation.” It’s unclear what the stakes are if the man is sterile, and presumably a vasectomy would immediately nullify a marriage license.
Obviously this is all nonsense, but this is the corner conservatives have painted themselves into in an attempt to avoid sounding like they’re anti-gay. By turning against heterosexuals instead, they prove that these arguments have nothing to do with same-sex marriage. Whether marriage is about children, monogamy, or simply reinforcing sexist gender norms, none of these points explains why same-sex couples shouldn’t have equal access to it.