Where the Snake Eats Its Own Tail: Marriage Equality and Reproductive Justice

28 Mar

The fight against marriage equality is a losing one. As the SCOTUS spends the week hearing oral arguments on Prop 8 in California (in which voters overturned a court decision that had allowed same-sex marriages in the state) and the Defense of Marriage Act (DOMA, which prohibits the federal government from recognizing same-sex marriage because everyone is an asshole), half a dozen high-profile politicians from both sides of the aisle have tripped over themselves in a rush to support marriage equality and be able to point back in a few years and say they were on the right side of history, however closely they may have timed it. One of these politicians is former Secretary of State Hilary Clinton, whose husband, while President, signed DOMA (because he is an asshole). That’s which way the wind is blowing, and no, you don’t need to a weatherman.

Public support for marriage equality has expanded so far so fast for several reasons. Some of it is growing public awareness, while some of it is the result of on-the-ground, grassroots legislative and communications efforts that have been decades in the making. And some of it is very simply that the arguments against marriage equality, now having been stripped down, over and over, to their composite pieces, have proven to stand on extremely thin legal ground. As the cases go before the SCOTUS, the arguments against marriage equality now break down into two recognizable composite pieces: plain old hate and homophobia, and children.

The debate about what’s good for children belongs to both sides of the marriage equality fight. Justice Kennedy, likely to be the swing vote on the issue, raised the question during Tuesday’s argument about the “immediate injury” suffered by children in California whose same-sex parents were not allowed to marry, saying, “They want their parents to have full recognition and status.” Justice Antonin Scalia, who is a well-known asshole, also raised the issue of children raised by same-sex parents while expertly trolling the nation, stating, erroneously, “There’s considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family, whether it is harmful to the child or not.”

But more important than the general debate over the welfare of children being raised in this country is the essential question of what power the not yet conceived, future children of our nation should have on defining marriage. That may seem to be a ridiculous question, but that ridiculous question now forms almost the entire recognizable legal basis for the fight against marriage equality (hate and fear are perfectly legal but do not qualify as a legal basis for an argument).

The argument being made against marriage equality is known as “responsible procreation,” and Jeffrey Rosen explains it:

If the Court does decide the Perry case on the merits, it will come down to this claim: Because only straight people can impulsively and accidently have illegitimate children out of wedlock, they need a stable institution of marriage to discourage them from doing so and to force them to focus on the consequences of their animalistic passions. But as Justice Kagan noted, the idea that denying marriage equality to gay couples would encourage monogamy and responsible procreation by straight couples is hard to follow, let alone to fathom.

That is a fairly kind and comprehensible way of explaining what is actually an extremely opaque argument brought forward by the lawyers for Prop 8, which went as follows:

[S]ociety’s interest in responsible procreation isn’t just with respect to the procreative capacities of the couple itself. The marital norm, which imposes the obligations of fidelity and monogamy, Your Honor, advances the interests in responsible procreation by making it more likely that neither party, including the fertile party to that … marriage will engage in irresponsible procreative conduct outside of that marriage. Outside of that marriage. That’s the marital—that’s the marital norm.

This is what’s so fascinating: the right’s last great hope of limiting the definition of marriage is to do it by insisting that it the only way to continue to effectively legislative reproductive options. That’s amazing. This is an argument against same-sex marriage that actually says, “We need marriage as a tool to control what people who can have children without planning them are allowed to do. Same-sex couples have to plan children* so they don’t need to be controlled by us so we should not give them marriage.” I mean guys. Really. What. I can’t even.

Equally fascinating is the notion that marriage equality has come so far in the 12 years since the state of Massachusetts first allowed it that simply arguing against LGBTQ rights is no longer as effective as arguing in favor of controlling people’s reproductive options. Conversely, arguing the need to control people’s reproductive options, no matter how bizarre an argument that is, is now so effective that other kinds of rights can be allowed or denied based on the perceived need for this control.

An interesting side-note to all of this is Justice Ruth Bader Ginsberg’s argument directly relating marriage equality to Roe v Wade. She had previously raised, and raised again on Tuesday, the issue of marriage equality simply moving too fast – based on her conviction that that was the issue with Roe. “It’s not that the judgment was wrong, but it moved too far too fast,” she said, and has expressed concerns that marriage equality could face the same difficulty if not handled properly by the court.

I am over-the-moon excited by the push and the public support for marriage equality I am seeing this week. I can only hope we see something like it in the near-term for reproductive rights, and the framework we are seeing in these arguments is not a portent of legal battles to come.

*Uuuugggghhhhhh wild assumptions inaccuracies etc these people are assholes.

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