best i have read yet, hope to find the followups as well
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By Ross Douthat
Not surprisingly, my Sunday column raising the possibility that the successes of the gay marriage movement might be having some modest influence on marriage’s overall decline left liberals (and many others) unpersuaded. Kevin Drum has a usefully representative rebuttal, whose three major points I think I’ll take up in separate posts. Here’s the first, which dismisses the idea that the push for same-sex marriage has tended to weaken the legal and cultural connection between marriage and procreation by … blaming social conservatives for injecting that supposed connection into the debate in the first place:
My sense of the debate is that the procreation argument was introduced by opponents of same-sex marriage, not supporters. Those advocating SSM just wanted gays and lesbians to be able to marry each other. It was opponents, after realizing that Old Testament jeremiads weren’t cutting it any more, who began claiming that SSM should remain banned because gays couldn’t have children. This turned out to be both a tactical and strategic disaster, partly because the argument was so transparently silly (what about old people? what about women who had hysterectomies? etc.) and partly because it suggested that SSM opponents didn’t have any better arguments to offer. But disaster or not, they’re the ones responsible for making this into a cornerstone of the anti-SSM debates in the aughts. Without that, I doubt that most ordinary people would ever have connected gay marriage to procreation within straight marriages in the first place. If this really has had an impact on traditional marriage, the anti-SSM forces have mostly themselves to blame.The notion that nobody would have entertained what Drum later calls the “esoteric” idea that marriage has an essential link to the way that human beings procreate if desperate social conservatives hadn’t grasped at it is apparently quite a popular view, judging by the fact that other writers raised it on Twitter over the weekend, and its popularity testifies to the way that the gay marriage debate has encouraged a strange historical amnesia about the origins of marriage law.
If gay marriage opponents had essentially invented a procreative foundation for marriage in order to justify opposing same-sex wedlock, it would indeed be telling evidence of a movement groping for reasons to justify its bigotry. But of course that essential connection was assumed in Western law and culture long before gay marriage emerged as a controversy or a cause. You don’t have to look very hard to find quotes (like the ones collected in this Heritage Foundation brief) from jurists, scholars, anthropologists and others, writing in historical contexts entirely removed from the gay marriage debate, making the case that “the first purpose of matrimony, by the laws of nature and society, is procreation” (that’s a California Supreme Court ruling in 1859), describing the institution of marriage as one “founded in nature, but modified by civil society: the one directing man to continue and multiply his species, the other prescribing the manner in which that natural impulse must be confined and regulated” (that’s William Blackstone), and acknowledging that “it is through children alone that sexual relations become important to society, and worthy to be taken cognizance of by a legal institution” (that’s the well-known reactionary Bertrand Russell).
Nor, perhaps more importantly, is it difficult to find various traditional features of marriage law that only make sense given the procreative understanding: For instance, the granting, not of divorces, but annulments in the case of marriages that weren’t or couldn’t be consummated — a provision with deep roots in the common law tradition, and one that remains in force today in contexts as diverse as California and England. (Current English annulment law went on the books all the way back in the dark medieval year of … 1973.)
Note, too, that by saying that a marriage left unconsummated through coitus is invalid, the common-law tradition makes precisely the distinction that Drum (and many others) find so self-evidently ridiculous and assume was obviously just invented for the gay marriage debate — a distinction between relationships that involve the reproductive act and those that don’t, with the former being valid marriages even when they’re infertile and the latter not. This Robert George-esque view of what is and isn’t marriage may or may not make sense, but it was considered a perfectly reasonable way of drawing distinctions between heterosexual relationships long before the homosexual claim to equal marriage rights began to be advanced. Wise or not, it was a distinction inherited from centuries of legal tradition, not invented as a made-up way to keep the gays from contaminating marriage.
Now if Drum wants to argue that this “first purpose of matrimony” understanding was eroding by the time the gay marriage debate began, and that its post-sexual revolution erosion explains why marriage’s inherent connection to reproduction went from being self-evident in 1971’s Baker v. Nelson decision (the first major gay marriage ruling, whose invocation of marriage’s necessary connection to the “procreation and rearing of children” nobody at the time found “transparently silly”) to being contested in the 1990s and dismissed in the 2000s — well then, yes, he would have an entirely plausible case. But he and others seem to be making a much stronger claim than this — that basically nobody would have imagined that the gay marriage debate had any implications for marriage’s connection to procreation if the anti-gay marriage cause hadn’t seized on the idea, and that the marriage-procreation link is (at best) a medieval relic exhumed to serve the ends of homophobia, and at worst just something invented by social conservatives out of animus and desperation.
That so many people find this claim credible or even self-evident is a small but potent example of exactly the two phenemona that my column’s conclusion discussed: First, the way that gay marriage inevitably has widening cultural ripple effects, in this case revising not only the law itself but also the stories people tell about where those laws came from and what they’re meant to do; and second, the way that some of these ripple effects are making it almost impossible for liberals to show magnanimity in victory, and accept the continued existence of people and institutions that still take the older view of what marriage is and means. After all, if that supposedly “older” view was just invented by Clinton or Bush-era homophobes when their Bible-thumping stopped working, then what’s to respect or even tolerate? Once you’ve rewritten the past to make your opponents look worse, then you’re well on your way to justifying writing them out of the future entirely.
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