Political Crossfire Forums

[John Galt]

There are different debates one can have about the subject. You can have a moral debate, a social-policy debate, and a legal debate. Maggie Gallagher, founder and President of the Institute for Marriage and Public Policy guest blogging at The Volokh Conspiracy, has been examining the legal side. Her thought are at the very least extremely interesting and are very compelling.

She cites a host of court cases explaining the purpose of marriage:

“[T]he first purpose of matrimony, by the laws of nature and society, is procreation.” Baker v. Baker, 13 Cal. 87, 103 (1859). “he procreation of children under the shield and sanction of the law” is one of the “two principal ends of marriage.” Sharon v. Sharon, 75 Cal. 1 (1888) (quoting Stewart on Marriage and Divorce, sec. 103. “Procreation, if not the sole, is at least an important, reason for the existence of the marriage relation.” Davis v. Davis, 106 A. 644, 645 (N.J. Ch. Div. 1919). “The great end of matrimony is . . . the procreation of a progeny having a legal title to maintenance by the father.” Laudo v. Laudo, 197 N.Y.S. 396, 397 (App. Div. 1919); Poe v. Gerstein, 517 F.2d 787, 796 (5th Cir. 1975) (“[P]rocreation of offspring could be considered one of the major purposes of marriage. . . .”); Singer v. Hara, 522 P.2d 1187, 1195 (Wash. App. 1974) (“[M]arriage exists as a protected legal institution primarily because of societal values associated with the propagation of the human race.”); Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971), appeal dismissed for want of a substantial federal question, 409 U.S. 810 (1972) (“The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis.”); Heup v. Heup, 172 N.W.2d 334, 336 (Wis. 1969) (“Having children is a primary purpose of marriage.”); Zoglio v. Zoglio, 157 A.2d 627, 628 (D.C. App. 1960) (“One of the primary purposes of matrimony is procreation.”); Frost v. Frost, 181 N.Y.S.2d 562, 563 (Supr. Ct. New York Co. 1958) (discussing “one of the primary purposes of marriage, to wit, the procreation of the human species.”); Ramon v. Ramon, 34 N.Y.S. 2d 100, 108 (Fam. Ct. Div. Richmond Co. 1942) (“The procreation of off-spring under the natural law being the object of marriage, its permanency is the foundation of the social order.”); Stegienko v. Stegienko, 295 N.W. 252, 254 (Mich. 1940) (stating that “procreation of children is one of the important ends of matrimony”); Gard v. Gard, 169 N.W. 908, 912 (Mich. 1918) (“It has been said in many of the cases cited that one of the great purposes of marriage is procreation.”); Lyon v. Barney, 132 Ill. App. 45, 50 (1907) (“[T]he procreating of the human species is regarded, at least theoretically, as the primary purpose of marriage . . .”); Grover v. Zook, 87 P.638, 639 (Wash. 1906) (“One of the most important functions of wedlock is the procreation of children.”); Adams v. Howerton, 486 F. Supp. 1119, 1124 (C.D. Cal. 1980), aff’d 673 F.2d 1036 (9th Cir. 1982) (observing that a “state has a compelling interest in encouraging and fostering procreation of the race”);

Yet many respond decidedly against her (she makes alot of posts that I won't list out and you should check them out at http://volokh.com )

She responds to a host of questions:

he same-sex marriage debate is really three debates: a legal debate, a social policy debate and a moral debate.

Of course people’s views on these things are intertwined, but intellectually the failure to separate these three related but distinct inquiries is one reason that exchanges of views on this topic are so often circular and futile, rather than progressing towards better mutual understanding.

When you make a point on the social policy question, people will often jump horses to the legal question, and vice versa.

So let me focus for a moment just on the legal debate. I’ll try to keep it brief.

When marriage has lost in court, we’re mostly losing on the rational basis test. This is really hard to do, and also quite insulting. It is a declaration by the court that only madness or malice can possibly explain why 60 to 70 percent of Americans today see marriage as the union of husband and wife.

Here’s how it looks from my side: You want to strip from the law of marriage the one feature that has been practically universal in human experience: and you can’t imagine even one reason why a person of sound mind and good will might object? Gee, Horatio, maybe there are more things on heaven and earth . . .

If courts really are applying a rational basis test, then marriage easily meets the test.

The classification used in marriage (sexual union of male and female) is clearly substantively related to a legitimate state purpose (“procreation and paternity” or creating the only kind of sexual unions in which men and women can make babies and raise them together).

The fact that not all married couples have children does not make their marriage unrelated to this state purpose. At a minimum no married couples who lives up to their vows will produce out of wedlock children, so all unions of male and female serve these state purposes in a way that no same-sex couple can. The only practical way a couple can guarantee that all the children they conceive will have this benefit is to first enter an exclusive faithful sexual union.. (People who want the data on the prevalence unintentional pregnancy in male-female sexual unions can consult the link to the U of Thomas essay listed below. It has lots of footnotes).

(BTW, under the rational basis test, it is not even necessary to provide the evidence I’ve offered below that the one of theprimary purposes of marriage has long been understood to be procreation. The court must consider any conceivable rational reason the legislature may have had.)

Many folks in this debate want something else than a rational relation: they want direct evidence of the harm that would come to this purpose of marriage by including gay couples. That is an important question for a state legislature, but it is not (or should not) be necessary to justify our marriage laws under a rational basis test. (Some better scholar than I might want to contemplate what the idea of "substantive rational relations" is going to do to our constitutional theory)

Every classification used by law excludes some people who could be included without obviously harming that law’s purpose. (e.g. If the purpose of speed limits is safety, then “drivers who do 56 mph” could be included without harming the state interest at stake. )

As the Goodridge dissent noted some undisclosed form of heightened scrutiny on some undisclosed suspect class must be being brought to bear. The Goodridge majority are the people with some motive here they do not want to disclose.

On strict scrutiny, I’m not going to delve deeply into this. I think it’s not hard to show the interests at stake in marriage are compelling, but figuring out what “narrowly tailored” means in this instance reveals a certain oddity of the structure of the pro-SSM argument. The remedy SSM advocates seek is not to tailor marriage more narrowly to this interest, but to widen it, to make the classification employed by the law even less related to this compelling state interest.

(I think the actual role of the fact that some marriage couples have no children in the structure of the pro-SSM legal argument is to suggest that procreation is not now, nor has ever been, one of the primary purposes of marriage, and those who suggest this are hiding some other motive. I also think this argument is pretty hard to sustain, if reason prevails).

On the gender equality issue, here I think there are sharp differences between marriage as the union of husband and wife and bans on interracial marriage (Loving v. Virginia). Marriage plays an integrative function with regard to gender: its a mixed sex institution. Moreover unlike bans on miscegenation (which were formally equal but substantively served to help keep the races separate so that one race can oppress the other), marriage not only formally, but substantively furthers gender equality, by helping reduce the likelihood that women as a class will bear the high and gendered costs of parenting alone.

(Orientation has not yet been declared a suspect class subject to strict scrutiny, to my knowledge.)

Ok, next, onto the question: What am I worried about? What’s the possible harm of SSM?

You can read more, like I said, at http://volokh.com as well as the link below.



http://www.marriagedebate.com/pdf/UST_fall2004.pdf


I for one think it (as in marriage as it has been throughout this country's existance and made so by law) does pass the rational basis test and the courts have absolutley no buisness in it -- even when, for the sake of argument, saying that in theroy they could possibly be involved and Marbury was rightfully decided (I don't think that, to be clear).

[mwm1331]

Thanks Galt. I have been arguing this exact approach since the beginning, yet lacking a legal background have been forced to do so from a purely rationalist standpoint.
Yet no one wants to acceptthat the rpimary purpose of marriage is and always has been procreation.
Can you repost this in the "why the US government shouldn't recognise gay marriage thread"

[F'losrix]

I refuse to discuss anything that Maggie Gallagher has to say. She's an admitted shill promoting the President's anti-gay federal marriage amendment.

I encourage the other pro-gay posters to refrain from participating in this one, as well. No need to respond further to blatant propaganda.

[StrangerWitCandy]

Yea I've read many of her articles. Not a fan at all.

[John Galt]

There's the way to counter arguments, ignore them and pretend they don't exist!

You guys sound like the Republicans when you mention spending or the debt.

[F'losrix]

John Galt wrote: There's the way to counter arguments, ignore them and pretend they don't exist!
When they're coming from a White House shill, you betcha. We have better things to do with our time.

[John Galt]

OK then, I guess that means you have nothing to say tho the mutlitude of Couert cases that establish the precedent of marriage being between a man and a woman, or the fact that keeping it as such passes the rational basis test.

[F'losrix]

John Galt wrote: OK then, I guess that means you have nothing to say tho the mutlitude of Couert cases that establish the precedent of marriage being between a man and a woman, or the fact that keeping it as such passes the rational basis test.
No taking your bait. You want me to discuss the content of the shill's article and I'm not going to do it, pure and simple.

[Praetorian]

Legally, there isn't much room for argument since there is so much precedent.

But morally, denying gay marriage based on religion (as the main excuse) is against what this country stands for--freedom. Of speech, or religion, of partner, etc...
Let them marry. Not doing so won't make them less gay.
What about people who don't want to have children? Should they not be able to marry since the main reason for marriage, according to some, is procreation?
What if they just want to adopt?
What if they can't have kids?

Quote: I think the actual role of the fact that some marriage couples have no children in the structure of the pro-SSM legal argument is to suggest that procreation is not now, nor has ever been, one of the primary purposes of marriage, and those who suggest this are hiding some other motive. I also think this argument is pretty hard to sustain, if reason prevails
What? How is that being suggested? I'm sure procreation was the primary reason for marrying for thousands of years, but times change. Married people used to sleep in separate beds. Should we keep that up because that is what they did a couple of hundred years ago?
Some other motive? Like what?

The multitude of court cases were decided by religious people, in religious times.
The arguement that gay people cannot possibly fill the requirements of vows is also a weak arguement. Plenty of straight people get married and write their own vows, or change the vows a bit.
I don't have time to read her blog because I have class, but based on what has been posted, her argument is weak and laughable at best.

There is plenty of procreation being done in this world by straight people that aren't married. Too much, one may argue. If we allow gays to marry, world population isn't going to drastically drop. Gay people can have kids too, even without *gasp* sex with someone else...