Friday, July 14, 2006

Who really needs to get married?

New York state's highest court ruled this week that state laws preventing gays from getting married are not unconstitutional, and may stand. Whether the ruling is a setback for the gay marriage cause or not is debatable -- Andrew Sullivan thinks it's high time to move the emphasis from courts to legislatures -- but what strikes me as both pathetic and hysterically funny is the reason the court gave for its ruling: We're too responsible.

With stunning insight the court observed that a boy and girl vigorously going at it can wind up starting a pregnancy without intending to. (Amazing! Who knew?) They also noted that it's much better for children to grow up with a mother and father than in a single parent household. Therefore, they reasoned, the state has a compelling interest in promoting marriage between straights, an interest that doesn't exist with gay couples.

In contrast with these reckless and irresponsible heteros (we don't call them "breeders" for nothing), gay folks boinking away cannot start a pregnancy, intentionally or not, no matter how enthusiastically we try. Gays who really want to raise a child can do so of course, through adoption or artificial insemination, but it takes quite a bit of effort to do it. Gays can be presumed therefore to take parenthood seriously, as something we have to choose and pursue, unlike those straights who just sort of tumble into it. So we have no need of the encouragement towards responsible behavior that society bestows on straights by allowing them to get married. (See analysis by Yale Law prof Kenjio Yoshino.)

My my. We've come a long way since Pat Buchanan said we had "declared war on Nature," and that AIDS was Nature's terrible revenge. (Did no one tell Pat that, globally, most AIDS sufferers are straight?) Now it seems that Nature has endowed us with innate virtues of probity and restraint, reproductively speaking. Ol' Ma N. must think pretty highly of us. Never mind that while this argument may be a reason for encouraging marriage between straights, it gives no reason for dis-couraging marriage between gays, especially since having kids has never been a prerequisite for getting or staying married anyway. Never mind that while gay men used to be sneered at for our presumed promiscuity, the court now says that straight relationships are “all too often casual or temporary," and therefore need marital shoring up.

No, what's truly ludicrous is that this argument relies on what can only be called a demonstrably failed policy. While the numbers have declined in recent years, nearly half of all teenagers have lost their virginity by the time they graduate from High School. (Source: U.S. government.) If marriage is supposed to counteract that, it's got a hellishly high failure rate. Which, after all, stands to reason. How often does a horny 17-year-old with a ready and willing girlfriend stop fumbling with his belt buckle to think, "Wait a minute. Are we married yet?" Yeah, yeah, that's what he's supposed to think, but in practice? To us the Puritans are the prime example of sexual restraint and repression, and the word puritanical is the ultimate symbol of it. But historical studies have shown that in Puritan New England, up to 40% of brides were pregnant on their wedding day. Move up to our present hypersexualized culture and what do you expect? Please.

Whether the kids should be carrying on like that is another topic, one I won't go into now. But such a dubious rationale is a pretty flimsy basis for keeping a whole class of Americans second-class citizens.


Anonymous said...

I'm going to go out on a limb here and say I have a problem with the whole second-class citizen thing. It's inarguable to me that same-sex couples should have the opportunity to make public declarations of commitment and follow that with all the benefits and responsibilities of married life -- inheritance, visitation, tax breaks, child adoption etc. But does it have to be called "marriage"? To do so changes the meaning of Mankind's most ancient institution and is unspeakably insensitive to the deepest concerns of millions of religious people. Rather than spark a war over it that won't be won for centuries, why not work for truly equitable civil unions, declare victory when we get them and be done with it?

Steve T. said...

Some people think the symbolism of the word "marriage" is so important that anything less is not enough. But I'm not really one of them. I think the fact of the benefits you mentioned are more important than the label. Many of these benefits can be gotten through private contracts, such as medical powers of attorney, as Alden and I have done. But not all. One you didn't mention is that spouses cannot be compelled to testify against each other, and there's no way under the law you can sign up for that without marriage. (Not that we're planning to knock over a bank any time soon.) If civil unions can be established and be seen to be working, I expect in time people will think it's silly not to go the whole hog, the word and all, though it may take a generation or two.

The second-class citizen thing, though, is all too real, at least in some places. The voters in Georgia passed a state constitutional amendment banning both gay marriage and civil unions, and their supreme court just upheld it. In the ruling the court said the purpose of the amendment was "reserving marriage and its attendant benefits to unions of man and woman." Does this mean Georgian couples cannot even establish benefits through private contract, powers of attorney? It may. No one really knows yet.

Anonymous said...

"and its attendant benefits"

Well, that's scary. And from Georgia, too, one of the more progressive Southern states (I thought).

Is it really true that "spouses cannot be compelled to testify against each other"? I ask because nowadays, if a policeman answers a domestic dispute call and witnesses bruising on a woman's arm, he is required to report a potential assault, and she is required to testify. I just sat on a jury trial in which a woman was very unhappy at having to testify against her husband, but she had no choice in the matter.

At any rate, I'd have mentioned that too if I thought of it. I'd like to leave the only differences between gay and straight marriage to be semantic ones. But further evolution will take much more than two generations because of the shrinking nature of the globe, as your 7/19 post avers, and the fact that people from very different countries will continue to immigrate and have an influence on American society.

Steve T. said...

Say what??? She had to testify unwillingly? That's astounding, as I thought the principle of spousal immunity goes back hundreds of years, to the English common law that was the basis of colonial law, before the Revolution.

The only thing I can think of is that California has carved out an exception for cases like that, of spouse abuse, or maybe child abuse, as opposed to compelling testimony from an accused embezzler's wife. I can imagine reasoning that says a battered wife is in emotional thrall to her husband, and cannot see that it's in her best interest to denounce her abuser, and so must be compelled. If that's the reasoning I can understand it, but it seems like the nanny state gone mad.

Which gives me a segue for recommending a terrific movie we just watched, one where spousal immunity is key to the plot: Witness for the Prosecution. Fabulous English legal thriller from the mid-50s, and Marlene Dietrich's entrance is breathtaking, grand moviemaking at its best. Though it's a secondary role, she almost steals the movie, and almost stealing a movie from Charles Laughton is no mean feat.