The Baby With the Bathwater

I ran across this essay by John Corvino last evening and was going to leave a comment, but I couldn't quite focus my thoughts at that point. Now that I've slept on it, I do have something to say. He's commenting on an OpEd by Robert P. George that I had dissected some while back. (I took George's OpEd apart here. For those interested, I also discussed Jonathan Rowe's response in another post, here.)

While I largely agree with Corvino on this one, this jumped out at me:

First, the good points: George is quite right to insist that the Court’s role is to interpret the Constitution, not to make policy. He’s also right to argue that marriage law has been, and should be, tied closely to the needs of children. And he exhibits a refreshing “don’t panic” attitude, asserting that “democracy is working”—although by democracy, he seems to mean only voter referenda, and not our more complex representative system, with its various checks and balances. On the latter, broader understanding, I’d agree that “democracy is working:” in the last year, five additional states have embraced marriage equality.

There are three huge flaws here -- and I mean HUGE. George is dodging the issue -- or, more accurately, misrepresenting the Court's role in this particular debate. The Court's role is, indeed, to interpret the Constitution, and since this is a matter of fundamental rights and equal treatment under the law, the Court is the appropriate place to go. I'll come back to the second one. The last big flaw in George's argument, which Corvino turns upside down, is the idea that questions of constitutional guarantees should be decided by popular vote. This country has never worked that way, and George should know better. Actually, so should Corvino, as much as he's written and lectured on gay civil rights, and particularly marriage.

The part that leaped out at me was "marriage law . . . should be tied closely to the needs of children."

Why?

I don't dispute that children are, and have been, one of the central factors of marriage -- after all, raising a family is one of the reasons people get married. It was a key factor in dynastic marriages, whether those were political or business: it was about paternity and property. However, to jump from that to the idea that children are the central factor in marriage is simply not dealing with reality. Leaving aside George's fantastic (and sometimes painfully funny) leaps of logic in ascribing marriage as legitimate for childless couples because male/female sex has the "potential" for procreation (when, in fact, it doesn't always, particularly if the couple are infertile or taking steps to make sure that there is no procreation gonna happen), let's just look at this rationally.

No matter what anyone may say, marriage now is an arrangement between two people that carries with it a certain status in the community. That status is "married couple," and it's not dependent on evidence of fertility. For Corvino to concede that marriage law should be tied closely to the needs of children is giving away the store. Certainly, the needs of children should be one part of it, and an important part, but the core of marriage law should be the rights and responsibilities of the partners in terms of mutual care, decision-making, rights to property, and fiscal responsibility, including support and maintenance. It's instructive that these aspects are so often left to marriage vows, pre-nuptial agreements.-- or divorce courts. (I'd love to see a heterosexual supremacist "marriage supporter" address that, I really would. However, the weather report for Hell sees no snow in the foreseeable future.)

One of the most objectionable bases of George's piece is his flat refusal to recognize that gays are entitled to the same rights as anyone else. In his eyes, it's not a civil rights issue. Of course, in reality, it is. Happily, Corvino punctures that balloon -- sort of.

I remember reading somewhere in the misty past that America is so obsessed with children because we don't really like them very much -- if we did, we wouldn't need so many laws protecting them. This strikes me as more in the same vein, one that's been mined since the days of Anita Bryant. It's getting a little old.