What Marriage is For

On Thursday, Theodore Olson and David Boies, the Odd Couple of lawyers who have brought the constitutionality of same-sex-marriage bans before the Supreme Court, filed a brief that previews the arguments they will present to the Justices on March 26th. The most powerful rhetorical move they make in it—and it’s about time—is to flip the main argument against same-sex marriage on its head. Opponents, including the lawyers for California’s 2008 ban on gay marriage, Proposition 8, contend that allowing gays and lesbians to marry redefines marriage. But Olson and Boies argue that by rooting the meaning of marriage so firmly in procreation it’s in fact their opponents who are doing the redefining: they who have proposed “a cramped definition of marriage as a utilitarian incentive devised by and put into service by the state—society’s way of channeling heterosexual potential parents into ‘responsible procreation.’ ” For most Americans—and though the brief doesn’t offer data for this, it rings true—marriage is about throwing your lot in with someone you love and building a publically acknowledged family, with or without children. It has less to do with the state’s interests in promoting childbearing—a touchstone to which the Prop. 8 defenders return again and again—than it does with individual lives and the pursuit of happiness.  (...)

Virtually no one objects to people past reproductive age marrying, let alone infertile people or those who simply choose not to have children. Indeed, as Olson and Boies point out, the Supreme Court has upheld the right of married couples not to procreate—in Griswold v. Connecticut, the 1965 decision that found a “right to marital privacy” included access to birth control. The Court has upheld the right of incarcerated people to marry even when they would not be allowed conjugal visits, explicitly endorsing uses and virtues of marriage beyond the reproductive. These are hard precedents to get around if you are basing much of your argument, as the proponents of Prop. 8 seem to be doing, on the definition of marriage as a child-producing institution for heterosexual couples.

by Margaret Talbot, New Yorker |  Read more:

Photo: Michael Buckner/Getty