Defense of Marriage

Last July, the Washington State Supreme Court ruled in Andersen v. King County that the state had a legitimate interest in limiting marriage to only those couples which could bear children. The issue, of course, was a lawsuit against the county that the state's 1998 Defense of Marriage act, which prevented gay couples from marrying.

But the court made a big mistake in the reasoning they used to support the DoMA: by basing their reasoning entirely on childbearing, their entire case falls apart, and this leaves them open to an amusing, if no less serious, legal challenge.

To start with, it's frankly ridiculous to assume that gay and lesbian couples can't raise children. They can, either by adoption or by bringing in a third party to contribute 50% of the genetic material. Obviously this can't be a bad thing, because if it were then we would have to outlaw adoption and stepparents. My own academic advisor and his gay partner have just recently had a baby girl, bringing in both an egg donor and a surrogate mother to make it possible. They dote on this child as any other loving parents would, and they went through the whole process, baby shower and all. It was all very charming, and knowing these two brilliant and dedicated gentlemen, the child will be raised very well.

But more critically, the court's ruling implies that marriage is necessarily tied to the function of child-rearing. If this were true, it implies several things:

• Having children out of wedlock should be a crime.
• Divorce should be disallowed if there are children.
• It should be a crime to be married and not have children.

To this end, people opposed to the decision have launched Washington initiative I-957 (news coverage [1],[2]), which seeks to make all of the above law. Having a kid would be treated as an implicit marriage ceremony. Divorce would become illegal once kids were born (or maybe even conceived). All marriages that did not produce offspring would be automatically annulled. All married people who had not had children would be denied any marriage benefits.

All of these are obviously crazy, but that's the point. If they pass, the supreme court will have to strike them down one way or another. But to do so, they will need to contradict their own opinion in Andersen v. King County because these legal principles are direct consequences of that opinion. The whole exercise exists to demonstrate that that ruling was just sophistry: not legal principle, but twisted logic to justify a predetermined opinion.

I hope reason prevails, here. Marriage should be legal for any two consenting adults; there is no course of logic that successfully argues otherwise. (There exist arguments, of course, but none of them hold out as logical.) Over the long course of time, reason has slowly gained ascendancy in our civilization, given enough time I'm fairly certain it will win out here as well.

In fifty years, the various "defense of marriage" laws will look as pathetic and wrong as the miscegenation laws do now. We just need a little more time to grow out of the cultural cradle.