Peter Sprigg is Senior Fellow for Policy Studies at Family Research Council. This article appeared in
The Christian Post on July 22, 2014.
In the court cases which have upheld the one-man-one-woman definition of marriage (yes, there have been many, though not in the last year), the "rational basis" that judges have found for the laws has been the state's interest in promoting "responsible procreation."
Marriage is defined as the union of a woman and a man because it brings together men and women for the natural reproduction of the human race (which is impossible without the contribution of both sexes)-that's the "procreation" part.
Marriage further gives incentive for potentially procreative activities to take place in the context of a committed, lifelong relationship, to maximize the possibility that the fruit of procreation (a child) will be raised and economically supported in a stable setting by both the woman and the man who created that child-that's the "responsible" part.
Since only opposite-sex couples are capable of fulfilling this important public purpose through their natural union, it is rational to limit the public institution of marriage to such couples.
Advocates for the redefinition of marriage, however, have a simple answer to this argument. "Opposite-sex couples," they say, "are not required to demonstrate their intent or capacity to procreate before they may marry. Many opposite-sex couples never procreate, and the state still recognizes them as married. Therefore, marriage cannot be about procreation,"
This argument sounds decisive-but in reality is extremely weak. It simply is not constitutionally required (because it is nearly impossible) for classifications under the law to draw perfectly precise lines between every single individual who fulfills the public purpose of the law and every single person who does not.
Consider this: Suppose a group of obese and otherwise physically disabled individuals were to sue the government for the "right" to serve in the military. They charge that physical fitness standards for military recruitment "discriminate" against them because of "who they are," and are therefore unconstitutional. The government responds, "The military exists to fight and win wars. Physical fitness standards are rational because good physical fitness is necessary to perform effectively in combat."
"Aha!" respond the plaintiffs' attorneys. "There are some people in the military who never serve in combat, but they are still considered service members and receive all the benefits of that, and of veteran status when they retire. Therefore, the military cannot be about fighting wars!"
This way of arguing is plainly silly, but it has been taken with grave seriousness by a string of otherwise intelligent judges.
However, my question for those who wish to redefine marriage to include (intrinsically, structurally) infertile same-sex couples is this -- "If marriage is not about procreation-why is it about sex?"
Marriage re-definers rarely state the heart of their contention, implicit in their arguments, that sexual attraction is a fundamental and necessary condition of marriage.
I sometimes point out that strictly speaking, the marriage laws do not "discriminate" against any individuals on the basis of sexual orientation. Marriage license applications do not inquire, and have never inquired, as to the "sexual orientation" of the prospective spouses. A homosexual man is completely free to get married-as long as he married a woman. A lesbian is completely free to marry-as long as she marries a man. There is no facial discrimination at all.
Some people may feel that such an argument borders on the absurd. After all, who would want to marry someone they're not sexually attracted to? However, the legal and political issue at the heart of the debate over redefining marriage is not, "Why does any one individual or couple choose to marry?" The key question is, "Why does the government treat marriage as a public institution in the first place, rather than as a purely private relationship?"
From a legal perspective, however, the idea of same-sex attracted persons marrying someone of the opposite sex is absurd only if sexual attraction is bedrock essential for a "marriage" to exist. And sexual attraction is only essential to marriage if we assume that the public purpose of marriage is to promote relationships that bring the maximum sexual pleasure to the spouses.
The idea that the government should (let alone that it is constitutionally required to) promote relationships that provide sexual pleasure above other relationships that involve "love" and "commitment" is truly absurd.
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Conveniently, Mayor Parker (an open lesbian who has called this ordinance "personal") asked the Houston City Attorney, not the Council Secretary, to verify the petitions -- something our friends at Texas Values say is highly unusual. The City Council approved the measure in May, ordering local businesses, employers, and contractors to give special preference to gays and lesbians in their decisions -- along with a highly controversial section that gives adults permission to use whichever public restroom, shower, and locker room they choose, regardless of their biological sex. After the Council approved it, a coalition of local pastors and other concerned citizens promised to take the issue to voters -- something liberals are desperately trying to avoid.
