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Tuesday, April 2, 2013

The Historical Linkage Between Marriage and Procreation

Ross Douthat, at the New York Times, takes on the currently en vogue argument that marriage is unrelated to the ability to procreate. He notes that "gay-marriage" proponents are engaged in Orwellian historical revisionism:

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.
He also notes the threat posed to those with historic views of marriage:
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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