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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Wednesday, February 14, 2007 ::
    "Initiative 957" -- Washington State's alleged mandatory-procreation proposal

    A splinter of the same-sex marriage movement is trying to score some quickie debating points by pretending to agitate for a law in Washington State -- "Initiative 957" -- that would require married couples to have a child within three years of marriage, and criminalize divorce for married couples with children.

    The idea, of course, is to caricature some of the (already misunderstood) arguments of gay marriage opponents, and to develop that caricature into a political stunt to convince voters that a law like this is the inevitable consequence of rejecting gay marriage.

    Those who have followed this debate know that ssm opponents have always rejected the view -- attributed to them as something they "must" believe -- that infertile opposite-sex couples cannot validly marry. Profs. Robert George and Gerard Bradley have explained this at length in many venues. See e.g. George and Bradley, Marriage and the Liberal Imagination, 84 Geo. L. J. 301 (1995).

    As for criminalizing divorce: ssm proponents are right that opponents should, in all justice, devote some of their energy to curbing divorce. I in fact have done so, arguing in an FRC paper that no-fault divorce is an experiment gone awry. But no serious critic of divorce (or even any un-serious one, afaik) has ever argued for criminalization.

    What's more, they are right not to, for at least two reasons: (1) criminilization, in general, is a seriously overused move in American policy-making, across a wide range of issues; and (2) criminalization of divorce is simply not our legal tradition. Divorce critics may indeed want to return to a status quo ante, but that status quo ante is not a regime of criminalized divorce: it's a regime of divorce based on fault.

    Would Initiative 957 even be constitutional, based on precedent (if not text)? Its supposed proponents are claiming to base it on a line in the Washington State Supreme Court's decision of last summer, upholding the state's marriage law, to the effect that procreation is a "legitimate state interest." But, as these legal activists surely know, a "legitimate state interest" is, by definition, entirely subordinated to constitutional rights. Initiative 957 would clash -- not with Loving v. Virginia, which is about race more than about marriage -- but with a string of cases dealing with marriage as traditionally understood, notably Turner v. Safley, Zablocki v. Redhail, and Michael H., and of course the key dicta in Meyer and Pierce.

    Simply put, a state power to annul an existing marriage against the wishes of the parties would be a novel and unprecedented power-claim. The Washington State Supreme Court's decision last summer allowed the state to decline to recognize a new and revolutionary form of marriage. That is universes away from allowing the state a new and revolutionary power to destroy existing marriages.

    The ideologically opposite analogy for Initiative 957 would be something like this: a socially conservative group forms a committee with a name like "Citizens for Marriage Equality," and proposes a law annuling the parental rights of parents who refuse to raise their children in a "gay-affirming culture." Nobody this side of Jim Dwyer would support that, and even he hasn't advocated it, afaik. Such an "initiative" would be a mendacious piece of political theater -- just like "Initiative 957".

    :: David M. Wagner 11:05 AM [+] ::

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