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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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    :: Monday, August 09, 2010 ::
    I've received a question from a distinguished reader about my post on Judge Walker's Perry decision. I received similar questions when I posted a link on fb, so evidently it's a question of a real ambiguity in my post, which I'm glad to have the chance to clarify. Also we can explore further the question: what kind of human relationships does the state have any interest in regulating, and why?

    Here's the letter:
    In your "Ninomania" post from yesterday on the topic of the fate of Prop 8, you commented that: "Marriage is the way society takes the fact that people are going to have love affairs, with or without the state, and, out of that fact, creates a system for seeing as well as possible to the well-being of the children that are going to result from those love affairs." Perhaps I am misreading this statement, but you seem to be saying that providing a stable context for procreation is the only interest significant enough to justify the state's sanction of the institution of marriage. Is that accurate? If so, I disagree.

    I think we probably have similar views on the subject of marriage, but I do not believe that procreation is the only interest the state has in protecting marriage. The state has an interest in the stability of love affairs regardless of whether or not children result, because when a love affair occurs, people make living arrangements, plans, and promises that make breakups of any type (either a divorce of married people without children or a "divorce without the benefit of marriage" between people who have been living together) very messy. People engaged in love affairs begin to intermingle finances and make other choices with long-term consequences that are not so easy to unwind, even when there are no children. The state has an interest in the stability of these arrangements because there are a whole host of legal problems that arise when these affairs are unstable. Children make such instability even more problematic, but children are not a prerequisite to the messiness resulting from treating love affairs as temporary. Moreover, if procreation is the only justification for marriage, then why should the state allow infertile heterosexual couples to marry? What about a heterosexual marriage in which a woman has had a hysterectomy and has zero potential for natural procreation? Procreation is certainly a rational interest for distinguishing heterosexual marriage from homosexual marriage, but it is not the only justification for the state's protection of marriage.

    Thanks for your time and anticipated response.

    Zachary C. Larsen, Esq.

    As I said, more than one person wondered whether I meant that procreation is the sole source of the state's interest in marriage. The question of the nature, extent, and limits of the state's interest in procreation is a worthwhile topic, but a different one. The state interest I'm referring to here is the state's interest in providing unique protections to the sole form of human coupling that will, if nature takes its course, produce children, and in arranging those protections such that the well-being of those children is maximized, within the boundaries of the state's capability of doing so.

    I'm very aware, and concerned, that this argument could be seen as taking the form of one of those "won't someone please think about the children!!!" whines that too often substitute for argument when someone is urging the state to take on some function beyond its capability or proper scope. But -- surprise -- it turns out some social institutions (generally old ones, not the modern therapeutic state so beloved of progressives) really are designed to protect children; marriage first and foremost. Innovations that reorient it toward adult interests are bad -- unprogressive, in a non-ideological sense of that word -- to that extent.

    Obviously liberalized divorce law accomplishes this adults-first/children-are-resilient reorientation of marriage even more directly that same-sex marriage. Not only do I admit this when I speak on marriage law -- I stress it. I don't think it adds to the friends I make, except perhaps among those who value consistency. But I really think it would be a hollow victory to stop same-sex marriage while preserving or extending the catch-and-release culture that modern divorce law has become.

    Pro-ssm activists think, lazily, that tradition is a huge part of my side's argument. On this point, I think Ross Douthat nails an important point in his NYT column today (though I think he too overestimates the role that tradition, w/o more, plays in the anti-ssm argument). When it comes to protecting children, tradition can provide some guidelines for evaluating proposals for state action. Headstart, mandatory pre-school, child protective services with ever-more sensitive trip-wires and ever-more draconian powers -- things like these are proposed and enacted. though none of them pre-date the 20th century. Marriage as a gender-crossing, gender-bridging institution, with an intergenerational focus, is as old as civilization as far as we know (even accounting for varieties in its forms). There are cases in which it's hard for to distinguish the traditional from the non-traditional, but this is not one of them.

    If the future of marriage is what Judge Walker thinks its present is and its past always should have been, and yet Great Society programs of the "won't someone please think of the children!!!" variety continue to grow, we will be moving in exactly the two wrong directions: buidling up government solutions of debatable utility and undoubted ill side-effects, while removing state support for a pre-state institution that aimed at many of the same goods.

    Well then perhaps the really consistent people are the long-time libertarians, who see the same flaws I do in modern state-interventionist policies to "help children," but who hail ssm as an increase in freedom. This is paradoxical. Let's not forget that marriage is a form of regulation. Yes, there are all those goodgy "benefits," but, like most government benefits, they are attached to a form (however traditional) of government regulation. The specific complaint of Perry and fellow plaintiffs in California is that they were denied a marriage license. Don't libertarians (such as the IJ) usually litigate against licensing requirements? Isn't there "something wrong with this picture" when libertarians complain about not being subject to a licensing scheme?

    (I am aware that this only scratches the surface of "why libertarianism does not lead to supporting ssm." For more, go here.)

    This brings me to the second part of Mr. Larsen's question. More relationships that just marriage cause ruckus and tsuris when they disintegrate. (True.) So, isn't there a state interest in hedging about those relationships, too, with state protections? Here again, I would appeal to the general libertarian impulse against regulating things, an impulse that one does not have to be a full-time libertarian to share -- a mere libertarian streak, which I have, will do the job. It seems to me that Mr. Larsen's arguments prove too much, in terms of furnishing a basis for regulating a wide variety of (appropriately) unregulated human interactions. And then there's the forthcoming Leib book that I referenced in my original post, which seems to propose and defend just such a regime.

    Marriage law is an exception to the wise and salutary general rule that human interactions ought generally not be regulated. We make that exception b/c of the unique gender-crossing, child-rearing, and generation-uniting functions of marriage.

    Mr.Larsen also raises the by-now-classic (and I don't mean that snarkily) hypo of the infertile couple. Most of us agree (even if reluctantly) that the state can test for diseases before issuing marriage licenses but infertility is not a disease. It can't be transmitted from one partner to another (if I'm wrong on that, the analysis may change, but I'm pretty sure of it -- the exception would be a disease that has infertility as a symptom, but then we'd be talking in the first place about that disease, not about infertility); and by definition it can't be transmitted to offspring.

    I'm willing to posit irreversible infertility if it's part of the hypo, but in the real world, they have it very oft that have it not -- functional infertility, that is. That's another reason why denying marriage licenses on this basis is much harder to defend that denying them on the basis of a disease in the proper sense.

    So what about real, no-kidding, irreversible infertility? Equal Protection buffs know that the law is never required to legislate with absolute precision. If we're in the legislature and someone proposes a law to place proposed marriages between irreversibly infertile couples in the same category as proposed marriages between persons of the same sex -- i.e., they will not be recognized by the state -- I'll think about it, but I'll probably vote against it. In radical contrast to ssm, marriages between infertile opposite-sex couples would not be the start of a radical new social experiment. That would probably determine my vote.

    :: David M. Wagner 3:24 PM [+] ::

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