Elena Kagan Playing Silly Buggers

Justice Kagan, had something up her sleeve for Charles J. Cooper, the lawyer defending Proposition 8 in the Supreme Court last week. She said to him: “It seems as though your principal argument is that same-sex and opposite -- opposite-sex couples are not similarly situated because opposite-sex couples can procreate, same-sex couples cannot, and the State's principal interest in marriage is in regulating procreation. Is that basically correct?”   

“Your Honor, that's the essential thrust of our position, yes”, replied Mr Cooper .   “Well, suppose a State said, Mr. Cooper, suppose a State said that”, Kagan attacked, “Because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55. Would that be constitutional?”.  To which  Mr Cooper truthfully replied, “No, Your Honor, it would not be constitutional

         Those of us who have followed the debates over gay marriage for some time  know intimately this ploy.  You say, yes, of course, marriage is an institution to regulate human procreation, one recognizing the unique role of the union of two members of opposite sex in establishing and enlarging human kinship.  But - the answer goes - if that were true than the state would also , to be fair and equitable, have to refuse to marry hetero couples which are known to be infertile, either because of age or a medical condition of one or both partners.  This is deemed to take care of the objection to gay marriage, in certain quarters, especially among those not in the habit to think too deeply about things.
 
        The problem of course is that this is a very weak argument based solely on the equality of procreative incapacity, regardless whether it's cause is a medical condition or partner's sexual identity.  The proposition stands or falls on the suggestion that medical incapacity to procreate in heterosexual  couples is by virtue of effect equivalent to lack of issue in same-sex couples. But that is most certainly an illogical way to argue.   On this test, one ahould be able to be married to a reclining chair.   

     That this motion is defective becomes instantly clear  when one considers the obverse situation, i.e. one in which both partners are procreatively healthy.   There of course, the reproductive inequality of the two types of relationships comes out clearly.  While heterosexual couples can procreate within the bond of marriage, exclusive of  the involvement of a third party (as required in monogamous marriage in Western society)  the same sex couples cannot and must - if they wish to claim parenthood - enter into contractual partnerships with outsiders to the marriage bond. 

The competent jurist would then have to answer the poignant questions of the state's  interest in the institution or semantics of marriage.  It seems absurd the think that the fathers of the Constitution would have thought of the opportunity to overcome natural reproductive defects and age limits in married couples as a pressing command to redefine the procreative union and biological kinship in favour of a legislated definition that seeks to obfuscate the natural basis of human families. Does the fact that infertile couples may adopt children in any way invalidate the finding that all children are born in a genetical join of a man and a woman.  Judge Scalia's question when it became unconstitutional to exclude gay people from the institution of marriage is very much at the cutting edge here.   

Does the state have then  any interest in recognizing marriage as a type of relationship capable of producing offspring exclusively within the union (, regardless of actual outcome) ?   Does the state have any interest in promoting the idea that children (if they are born) are born to biological parents who are married to each other? Does the state have any interest in promoting the idea that those parents care for their offspring ?  Does it benefit the state for the children to know and acknowledge both parents and their kinship ties ?  Have any of the answers to these questions substantially changed since 'We, the people' went out of the printer's office ?  I think not. 

Having said that I emphatically underwrite same-sex unions being recognized and registered as civil partnerships with rights of inheritance, proxy and tax benefits analogous to married couples.  That too is common sense to me.  It is just that we cannot change who we are and where we come from. The idea that somehow we can redefine our nature and invent for ourseves bonds that describe who we are as humans is as naive in its intent as it will be disastrous in its effects.