Wednesday, February 06, 2013

The Legacy of Baker v. Nelson | First Things

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Against this backdrop, the revisionist view of marriage put forward by the plaintiffs in Baker v. Nelson, as well as activists today, has two principal claims: 1) marriage was never really about procreation and 2) requiring sexual complementarity in marriage is as irrational and bigoted as forbidding interracial marriage. On the latter point, the lawyer representing the plaintiffs in Baker noted that "the state does not put upon heterosexual married couples a condition to prove capacity or declared willingness to procreate." Since procreation was not essential to marriage, he further claimed, statutes defining marriage as a conjugal union between a man and a woman were of a piece with the anti-miscegenation statute struck down a few years earlier in Loving v. Virginia (1965).

The Minnesota Supreme Court offered two brief points in response. On procreation, the court insisted that the "statute is no more than theoretically imperfect" and that there is no requirement for "perfect symmetry." On the analogy to racism, the court wrote simply that "in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex." Five years after its decision in Loving v. Virginia, the Supreme Court then dismissed Baker for lacking a federal question—something it could do only if Minnesota's marriage law did not violate the federal Constitution.

The rhetoric of equality, when taken to its logical conclusion, will render civil marriage itself suspect, since even same-sex marriage (as the philosopher Elizabeth Brake complains in the preface to her book Minimizing Marriage) "marginalizes the unpartnered and those in nontraditional relationships—quirkyalones, urban tribes, care networks, polyamorists." The principles behind the "marriage equality" movement require much more than same-sex marriage. After defining marriage as an intense emotional bond between any two adults, the next questions will be, why marriage at all? Why two adults? Why do we care? Indeed, many are already asking these questions.

Of course, our marriage culture started to fracture long before the current debates, and a recent article in the Economist nicely summarizes the consequences. With the decline in marriage "come rising out-of-wedlock-birthrates" and "with illegitimate births come single-parent homes." The effects of single-parent homes (which in most instances mean fatherless homes) are well-documented and well-known: "Children brought up in such homes fare worse than children raised by married parents in a range of academic and emotional outcomes, from adolescent delinquency to dropping out of school."

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