Kudos to the Family Research Council for intellectual honesty. Here’s a frank argument by one Allan Carson, conceding what is now obvious: it is very hard to hold the line against civil marriage for gay couples on the grounds that they cannot procreate. The reason is that civil marriage is available to any straight couple, regardless of their willingness or ability to have chidren. And this national consensus is now decades old:
It is now clear that the “right of privacy,” conceived by the Supreme Court nearly four decades ago, is the enemy of both marriage and procreation separately, and is especially hostile when they are united. It is also clear that we lost the key battles in defense of this union decades ago, long before anyone even imagined same-sex marriage. And we lost these battles over questions that–to be honest–relatively few of us are really prepared to reopen. How many are ready to argue for the recriminalization of contraception?
Well, yes. The basic problem for the anti-gay marriage forces is that they are upholding a marital standard for gays that no one any longer upholds for straights. And this obvious inequality – recognized even by Scalia, for example – cannot withstand judicial scrutiny under any reasonable standard of equal treatment under the law. Thats why I think it’s hyperbole to describe the Massachusetts court of judicial “activism.” The argument of the Commonwealth of Massachusetts was that gays couldn’t marry because they couldn’t procreate. Once it was obvious that this standard did not apply to heterosexuals, the court had no choice but to strike down the inequality. It was not a radical decision at all. It was an inescapable one. And that’s why even a conservative court like Alaska’s upheld it. And that’s why you really do have to amend a state constitution to prevent its guarantees of equality from being applied to gay citizens.
SO PROCREATE: The social right’s intellectually honest option, then, is obvious. And Carlson deserves praise for airing it. In order to prevent gays from marrying, the state must deny non-procreative straight couples from having the full rights of civil marriage. Maybe these non-reproducers can have civil unions until they reproduce. Maybe they can get married, but have their licenses revoked after five years if no babies are forthcoming. Carlson has another suggestion:
Perhaps we should restrict some of the legal and welfare benefits of civil marriage solely to those married during their time of natural, procreative potential: for women, below the age of 45 or so (for men, in the Age of Viagra, the line would admittedly be harder to draw).
That works too. And when you see the issue this way, you can see why the current effort to focus only on excluding gay citizens is so unfair. If non-procreative, companionate marriage is the civil norm, then you simply don’t have a case against gay couples having marriage licenses. And if you keep this standard for straights, while forcing gays alone to bear the burden of your battle against four decades of marital evolution, then you are being deeply, deeply unfair. So which is it? A new standard? Or equality now?
The Dish 