Dispatches from the Creation Wars

Sandefur on Kmiec and Gay Marriage

Sandefur picks up where I left off in criticizing Doug Kmiec’s op-ed about same-sex marriage being a threat to human survival and adds some very important arguments to the mix. He offers an excellent response to the “marriage is all about procreation” argument:

With that in mind, let us look at marriage. In Kmiec’s view, marriage is primarily about procreation. Another view–a view I hold to be more consistent with the worldview of the Declaration of Independence–is that marriage is about the union and conversation of souls. It is about shared values, ideas, memories, and identities. It is about mental and spiritual unity, and not about biology. This, indeed, is why marriages between infertile couples (like George and Martha Washington), or couples far beyond the age where they can have children, is not only accepted but applauded in the United States. This is why childlessness, while often regrettable, is hardly a veto on a marriage. This view of marriage is consonant with respecting individuals because of their common humanity.

Nicely said. And here’s an argument I wish I’d thought of: if you really think that marriage is all about procreation and propagating the species, why would you be against polygamy?

By contrast, seeing marriage as primarily centered around reproduction would validate marriages entered into only for that reason; marriages without mutual respect between the spouses. If we see marriage as primarily a mechanism for breeding, then love is largely superfluous. Yet would this not be the very barbarism of which Kmiec would disapprove? Indeed, if the “survival of humanity” should be the governing principle in matters of laws regarding sexuality, then why shouldn’t polygamy be encouraged? Or rape? Why should the law not require divorce for infertile couples? Or forbid prophylactics?

If you are really concerned, as Kmiec claims to be, about underpopulation and the “continuation of the species” would you not be encouraging polygamy? That is precisely how the Mormons, for example, grew their numbers in a remarkably short period of time. And then he offers another clever argument:

But single sex marriage does not “disorder” the continuation of the species in any way. Kmiec’s claim that “giving state approval to non-procreative marriage cannot be denied as a contributing cause to the decline of families with natural children” is truly astonishing. Of course it can be denied. Homosexuals are not going to participate in the reproduction of the species one way or the other–unless the state somehow forces them to do so. Should we force homosexuals to have children? That would remedy the depopulation Kmiec worries about. But, of course, it would violate the principles of the Declaration of Independence to which Kmiec has appealed.

If homosexuals are not going to participate one way or the other in the orderly continuation of the species, then banning them from getting married is no more likely to advance this purpose than banning rap music is to increase attendance at Mozart concerts. The people who do the former are no more or less likely to participate in the latter thanks to such a prohibition.

Except, of course, for those homosexuals who do choose to have children. And if anything, being able to have stable legal unions with all the protections that such unions provide for children will encourage gay couples to have children rather than discourage them. So if we are to take the propagation of the species argument seriously, it leads to the opposite conclusion than the one they want to reach.

So why don’t they follow their own premises to their logical conclusion? Because those aren’t really their premises at all, they are disingenuous arguments used only as a form of special pleading. Sandefur nails them on that too:

It is implausible in the least to say that the “distinction” by which same sex couples are barred from marriage is one “reasoned” on the basis of humanity’s “survival.” The ban on same sex marriage is rooted not in the needs of reproducing the species, but in long standing disapproval of homosexual relationships, a disapproval based on moral arguments, not on arguments of necessity.

The arguments against same-sex marriage can’t be taken seriously because they do not reflect the real reason why people oppose same-sex marriage. The real reason can be expressed quite simply: “ewwww.” And that does not a rational argument make.