logic into reverse...

Again, the same-sex marriage issue is at our door. This arcticle by Ellen Goodman was in the St. Louis Post-Dispatch this morning and I felt it was worth a blog.

And no marriage for the infertile
By Ellen Goodman
08/05/2006

After spending hours poring over Washington state's Supreme Court decision upholding the ban on same-sex marriage, I've finally figured it out. The court wasn't just ruling against same-sex marriage. It was ruling in favor of "procreationist marriage.'' This is the heart of the opinion written by Justice Barbara Madsen:

"Limiting marriage to opposite-sex couples furthers procreation, essential to survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children's biological parents.''

So isn't it time for the legislatures in Washington and in New York, which issued a similar ruling against same-sex marriage this summer, to follow their own logic? If marriage is for procreation, shouldn't they refuse to wed anyone past menopause? Shouldn't they withhold a license from anyone who is infertile? And for those who choose to be childless? Nothing borrowed or blue for them.

Indeed, the state could offer young couples licenses with sunset clauses. After five years they have to put up (kids) or split up.

Of course, the states' other interest is in families "headed by the children's biological parents,'' Madsen wrote. Why then give licenses to the couples who are raising 1.5 million adopted children? And surely we should release partners from their vows upon delivery of their offspring to the nearest college campus.

This is where the courts' reasoning leads us, and I use the word "reasoning'' loosely. If anything, these two decisions are proof that the courts and the country are running out of reasons for treating straight and gay citizens differently.

Today, if some straight couples cannot or do not procreate, some gay couples do, using all the old and new technologies. Gays aren't banned from fertility clinics. They aren't the slam-dunk losers in divorce custody fights. Even Arkansas has just ruled that gay couples can become foster parents. And New York and Washington, the very states now refusing to let gays marry, have supported gay adoption.

I am a citizen of Massachusetts, a state where gay people have been getting married for two years without the sky falling. But the furor over the decision here produced a backlash that has scared a lot of judges straight, and the decisions in Washington and New York reek of that anxiety.

These judges seem ready to bow to any legislation on this hot-button subject that isn't certifiably nuts. For example, the American Academy of Pediatrics reports that "There is ample evidence to show that children raised by same-gender parents fare as well as those raised by heterosexual parents.'' The Washington court still determined that "the legislature was entitled to believe'' the opposite.

The backlash against gay marriage has produced strong passions and weak arguments. It's no longer enough to state in court that marriage has always been for straight couples, ergo it should be only for straight couples. This time the courts ended up arguing on procreationist grounds, pretty shaky legal terrain.

"It is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage,'' wrote Chief Justice Margaret Marshall in the Massachusetts decision that extended marital rights to gays and brought conservative wrath down on her head.

Marshall has been demonized as an "activist judge,'' a label pinned on the author of any ruling you dislike. Now, in an anxious attempt to put their courts into neutral, judges in Washington and New York have thrown logic into reverse.