A Stitch in Haste

I apologize for not having weighed in on the same-sex marriage litigation now before the California Supreme Court. I assure you that will change when the decision is handed down.

I have seen conflicting predictions about how the court may rule -- the only consensus is "close."

But one analysis did catch my eye:

As Justice Kennard and her colleagues probed further, we learned that the state entities were willing to submit three main arguments in favor of the state's marriage restriction: tradition, legislative primacy, and the will of the people. The state entities were not willing to argue that the marriage restriction is reasonable to further responsible procreation, to provide an optimum environment for rearing children, or to protect or promote marriage between different-sex couples. And now we arrive at the exact reason that the private entities clung so fiercely to a place in the litigation -- to put before the court arguments that they saw as justifying the restriction on marriage yet not advanced by the state's attorneys.

It's hardly surprising that the bigots were desperate to get the "procreation" argument before the California judges. After all, it was that same argument that formed the basis for gay marriage defeats in New York and Washington States. Stick with what works, right?

That the Supreme Court of California seems not only unpersuaded but downright uninterested in the procreation argument is undeniably a good sign. But that does not mean that we should forget the counterargument to invoking "procreation" as a argument against same-sex marriage.

To survive constitutional muster, a law must be adequately crafted to achieve the ends intended (and those ends must be legitimate functions of government, but that's another blogpost). In the case of unequal treatment of groups (e.g., "gays versus straights"), this means that a law must be neither overinclusive nor underinclusive; such a law is likely to be upheld. A law that is either overinclusive or underinclusive, however, will be problematic. A law that is both overinclusive and underinclusive is unjust and intolerable.

The procreation rationale for gay marriage bans is, of course, both overinclusive and underinclusive -- wildly so. "Marriage is for procreation" is overinclusive because it bans gay marriages that do conceive children -- though surrogacy, artificial insemination, etc. (and even, one could argue, through adoption).

"Marriage is for procreation" is also underinclusive -- because it fails to ban straight marriages that are not procreative. We impose no child-rearing preconditions on heterosexuals who seek to marry: no antenuptial fertility tests, no age restrictions, no postnuptial annulment of childless marriages, etc.

In short, "marriage is for procreation" was a disingenuous, obnoxious -- and patently unconstitutional -- basis to uphold gay marriage bans. Yet both New York's and Washington's high courts used it -- with a wink, a nod and a bang of the gavel -- to relegate gays (and, where applicable, their "overincluded" children) to second-class citizenship.

Regardless of how the Supreme Court of California rules, if the "marriage is for procreation" myth is debunked, then that will constitute progress.