The Counter-argument That SHOULD Have Been Offered To Justice Ginsberg In The Marriage Case



The simple truth that has never been fully appreciated by either side in the contentious debate over marriage is that the entire case against traditional marriage has always rested upon a single line of argument. This line of argument is sometimes referred to as “the non-procreation argument”. For what reason would an individual state, under our system of government,  not possess the right to set up an institution exclusively for the purpose of promoting the responsible procreation and rearing of children? The purpose in question represents a legitimate public interest; and in granting the particular rights and privileges that it does to male/female couplings, it pursues that public interest by rational means.  For the moment we will keep DOMA laws out of the discussion and deal only with the original state marriage statutes.  Under the Constitution,  the Federal government does not possess the right  to compel a state to expand a legitimate law in a manner not pursuant to the original purpose of that law, even if it alleges that this expansion would not interfere with  that purpose. Furthermore, one cannot accuse an institution of discrimination merely because one would prefer that another type of institution (one with a different purpose) exist in its place. One can only charge an institution with discrimination on the basis of its existing legitimate function.


This bring us to the single argument that has served as the basis for the case against traditional marriage: the non-procreation argument. It contends that promoting the responsible procreation and rearing of children cannot be the true purpose of those state institutions if they allow for marriages involving the sterile and the infertile. It is an argument that is specious and in fact a bit silly; but because it is indeed specious, it has on the surface a strong appearance of credibility.  Additionally, the Conservative has not offered up any reply that would expose the weakness of this argument to a listener unsympathetic to his own position.  The best version of this argument was set forth by Supreme Court justices Ginsberg and Kagan during the recent marriage trial.  They stated that to say that marriage is about procreation is to technically open the door to a state law banning marriages that involve the sterile and the infertile, or dissolving marriages of this description which already exist.  They conclude that because we understand intuitively that this is not right, the stated purpose for the institution cannot be correct.  But the same very peculiar logic dictates that if marriage is about sexuality instead of procreation,  a state could technically pass a law declaring that if it discovers evidence of medical impotence it reserves the right to prevent or dissolve a marriage. We know that the justices and the nation as a whole would not support such a policy in principle.  Putting all practical considerations aside, would Justice Ginsberg be willing to look an irreversibly impotent man in the face and tell him that he has no inherent legal right to marry because marriage is about sexuality?


If she could not do this, does it mean that marriage is not really about sexuality?  Now If marriage is not an inherently sexual union, then the traditional justification for laws against close family marriage no longer exists. Two close family members that merely wished to exploit the tax and insurance benefits of marriage and nothing more, would have to be allowed to participate since marriage is not specifically sexual in nature.  If the full acceptance of the infertile as married persons means that marriage is not about procreation, then the full acceptance of the impotent as married persons must mean that it is not about sexuality. No, the reason that neither  procreation nor intercourse is policed is because we live in a free society, and institutions such as marriage are designed to promote not to enforce. Laws excluding  same sex “marriages” then can be no more inconsistent then laws banning close family marriage.  This is the counter-argument that should have been offered to justices Ginsberg and Kagan in the recent trial.


The final issue we will tackle here are the DOMA laws. It is almost  always imprudent to craft a law using language that is broader than what is strictly necessary  to accomplish your intended purpose.  The original purpose of local DOMA laws was  to protect state marriage statutes from judicial activism. The most appropriate remedy then would have been an amendment that did not explicitly define marriage but one which only took the decision out of the hands of the judges. It might have read “The basic constitution of marriage, comprised of the union of a man and a woman,  shall not be altered within this state except by an act of the duly elected legislature or by popular referendum”.  No argument justifying the explicit exclusion of persons of the same sex would be necessary in this case. The original marriage statutes would simply be narrowly tailored to serve the general group associated with its purpose (men and women) and the amendment in question would merely be designed to protect the sovereignty of the people. Marriage could in theory be redefined by the state but only if the people as a whole decided to do so.   This version of the amendment coupled with the counter-argument above provides quite a formidable defense for classical marriage against any accusation of discrimination on valid legal grounds.





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