Who would have expected the argument against same-sex marriage to hinge on male fertility? But such was the case yesterday when attorney Charles Cooper uttered that statement to explain the meaning of “responsible procreation,” the central argument he advanced in favor of prohibiting same-sex marriages in his defense of California’s Proposition 8 at yesterday’s Supreme Court hearing (PDF).
The discussion about fertility led to several outbursts of laughter from the audience, among the few moments of levity during the proceedings; however, we should take seriously this evidence that the opponents of same-sex marriage are fundamentally interested in heterosexual procreation and in making sure that heterosexual men do not father children outside of wedlock. If you’re puzzled about how prohibiting same-sex couples from marrying will rein in straight men’s behavior, join the club.
Here’s how Cooper attempted to explain the concept of responsible procreation when questioned by the justices.
The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus, refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples.
Justice Stephen Breyer asked why, if the sole purpose of marriage is procreation, does the state grant marriage rights to couples who cannot have children. Justice Elena Kagan, who also found the responsible procreation line of argument confusing, asked a related question to try to clarify the issue.
Suppose a State said that, Because we think that the focus of marriage should be on procreation, we are not going to give marriage licenses any more to any couple where both people are over the age of 55. Would that be constitutional?
It was Cooper’s turn to be confused. “Your Honor,” he responded, “even with respect to couples over the age of 55, it is very rare that both couples—both parties to the couple are infertile….”
This evoked laughter, and Justice Kagan patiently explained what she was getting at:
No, really … I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage.
More laughter ensued, but Cooper wasn’t backing down. He began to offer the idea of marriage as an institution that ensures that even the “fertile party” (i.e., the man) in the over-55 couple would not stray.
At this point Justice Antonin Scalia indicated how absurd he found Justice Kagan’s question.
I suppose we could have a questionnaire at the marriage desk when people came in to get the marriage [license]—you know, Are you fertile or are you not fertile?
I suspect this Court would hold that to be an unconstitutional invasion of privacy, don’t you think?
When Justice Kagan noted that asking about age would be permitted by the Constitution, Justice Scalia turned comedian and made a joke about Strom Thurmond (who fathered children into his 70s). More laughter. To which Cooper responded with the line about very few men outliving their fertility.
After a few more back-and-forths about that hypothetical senior citizen pair, Cooper brought forth the following tortured account of the state’s interest in regulating heterosexual procreation, regardless of the age of the couple.
[Marriage is] designed … to make it less likely that either party to that, to that marriage will engage in irresponsible procreative conduct outside of that marriage. Outside of that marriage. That’s the marital—that’s the marital norm. Society has an interest in seeing a 55-year-old couple that is—just as it has an interest of seeing any heterosexual couple that intends to engage in a prolonged period of cohabitation to reserve that until they have made a marital commitment, a marital commitment. So that, should that union produce any offspring, it would be more likely that that child or children will be raised by the mother and father who brought them into the world.
The “responsible procreation” theory for opposing same-sex marriage simply does not stand up to scrutiny, as we pointed out in a post earlier this week. For instance, the government regularly defines families without reference to biology when distributing benefits (for example, by including stepchildren and adopted children as beneficiaries). Furthermore, allowing same-sex couples to wed will not have any effect on whether heterosexual couples bear children within wedlock.
But when you add to the mix this idea that the state seeks to control fertile men in general, who might otherwise father children without taking responsibility, we can see that the marriage equality debate is every bit as much about heterosexual marriage as it is about marriage for lesbians and gay men.
When opponents of marriage equality talk about “traditional” marriage, they want to roll back the clock on equality between men and women in marriage–hence the fear of “genderless” marriage and their insistence that marriage is a “gendered institution” even though the state does not currently force married couples to play traditional gender roles. If we don’t guard against such archaic views of marriage, the state might start requiring pregnant women to marry, forcing men to marry women who can prove paternity and possibly even counting the number of allowed children within marriages. That’s how intrusive this notion of regulating procreation can become.
Here’s hoping that the Supreme Court will see that extending marriage rights to same-sex couples will expand the number of people who get to live in stable, valued families. Above all, in terms of this line of argument, we can guarantee that no lesbian and gay couples will “accidentally” get pregnant and burden the state with unwanted children.