A legal look at the gorilla, from Benedict

First I have to give my appreciation to Chairm for his last series of posts. For those of you that are used to our usual pace of about one post a day, you should delve deep into the page. Chairm released no less than six posts over the weekend by my count. They build to a very the powerful point.
In other news Benedict was nice enough to link to us, so we'll link to him. In part two of his scuffle with Scalzi (one we'll be joining here soon) he lays down a great foundation of legal citings to help us understand the purpose of marriage from the perspective of law. Some of which comes from a post by Maggie Gallagher at Volokh, a post that while I actively engaged in that thread and others at the time, entirely missed how important that post was. I think it has to do with Joseph Tranfo's improvement in formatting.
It would be good to contrast his post with our recent link to MassNews.
Why Was Gay Marriage Decision "Illegal?"

[update: below is a copy of the pages linked to in this post] _____________________________________________

ENGAGING SCALZI ON SAME-SEX MARRIAGE, PART 2

Last Wednesday, July 12, I concluded Part 1 of this essay by asking what, if any, public purpose was served by the institution (or, perhaps more appropriately, the status) of marriage. Less than 48 hours later the United States Court of Appeals for the Eighth Circuitreleased its decision in Citizens for Equal Protection v. Bruning, a challenge brought against an amendment to the Nebraska constitution which provides

Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.

While the decision covers a variety of topics that are outside the scope of this post, it does contain one paragraph which is enormously relevant, as it gets to the heart of the "public purpose of marriage" argument. Here it is:

The State argues that the many laws defining marriage as the union of one man and one woman and extending a variety of benefits to married couples are rationally related to the government interest in "steering procreation into marriage". By affording legal recognition and a basket of rights and benefits to married heterosexual couples, such laws "encourage procreation to take place within the socially recognized unit that is best situated for raising children." The state and its supporting amici cite a host of judicial decision and secondary authorities recognizing and upholding this rationale. The argument is based in part on the traditional notion that two committed heterosexuals are the optimal partnership for raising children, which modern-day homosexual parents understandably decry. But it is also based on a "responsible procreation" theory that justifies conferring the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce chiuldren by accident, but not on same-sex couples, who cannot. [citations omitted] Whatever our personal views regarding this political and sociological debate, we cannot conclude that the State's justification "lacks a rational relationship to legitimate state interests." [citation omitted]

In so holding, the Eighth Circuit echoed over one hundred years of American jurisprudence, citations to and quotes from which can be found at this post at The Volokh Conspiracy. Here are some representative samples:

"[T]he first purpose of matrimony, by the laws of nature and society, is procreation." Baker v. Baker, 13 Cal. 87, 103 (1859).

"The procreation of children under the shield and sanction of the law is one of the two principal ends of marriage." Sharon v. Sharon, 75 Cal. 1 (1888)

"[T]he procreating of the human species is regarded, at least theoretically, as the primary purpose of marriage . . .", Lyon v. Barney, 132 Ill. App. 45, 50 (1907)

and

"Lord Penzance has observed that the procreation of children is one of the ends of marriage. I do not hesitate to say that it is the most important object of matrimony, for without it the human race itself would perish from the earth." Turney v. Avery, 113 A. 710, 710 (N.J. Ch. 1921)

To me it is vitally important to note that none of the above-cited cases arose in the context of the debate on same-sex marriage. Why? Because it demonstrates irrefutably that the procreation issue is not something dreamed up by "marriage bigots" to use as a cudgel against advocates of SSM.
The author of the post from which I took those citations and quotes is Maggie Gallagher, who I quoted in my earlier post on SSM. In that same post, Maggie also provides some sociological / anthropological background on the issue:

Although the details of getting married ... who chooses the mates, what are the ceremonies and exchanges, how old are the parties ... “ vary from group to group, the principle of marriage is everywhere embodied in practice. . . . The unique trait of what is commonly called marriage is social recognition and approval . . . of a couple engaging in sexual intercourse and bearing and rearing offspring. Kingsley Davis (ed.), Contemporary Marriage: Comparative Perspectives on a Changing Institution (New York: Russell Sage Foundation) (1985).
"Marriage is a universal social institution, albeit with myriad variations in social and cultural details. A review of the cross-cultural diversity in marital arrangements reveals certain common themes: some degree of mutual obligation between husband and wife, a right of sexual access (often but not necessarily exclusive), an expectation that the relationships will persist (although not necessarily for a lifetime), some cooperative investment in offspring, and some sort of recognition of the status of the couple’s children. The marital alliance is fundamentally a reproductive alliance." Margo Wilson & Martin Daly, Marital Cooperation and Conflict, in Evolutionary Psychology, Public Policy and Personal Decisions 197, 203 (Charles Crawford & Catherine Salmon eds., Lawrence Erlbaum Assoc. 2004)

Lest you think the authors cited by Gallagher are political hacks or religious fundamentalists of one brand or another, here is one biography of the late Kingsley Davis (where he is halied as "one of the outstanding demographers and sociologists of [the twentieth] century" and here is another, which notes that he was the first sociologist to be elected to the National Academy of Sciences (in 1966). Wilson and Daly are significant enough in the field of evolutionary psychology to have their own pages on Wikipedia (Wilsonand Daly), and are affiliated with McMaster University in Canada.
As I review Gallagher's collection of posts on the public purpose of same-sex marriage at The Volokh Conspiracy, it strikes me that there is very little I can add to her analysis. For instance, this strikes me as profoundly correct:

Let me offer 2 additional reasons why I believe in the primacy of procreation (not, remember, as the definition or the essence of marriage”marriage is a sexual, financial, emotional union of husband and wife) but as the main reason why marriage exists as a legal status and as a universal human idea.
1. Internal coherence. The first reason is internal evidence from the structure of marriage in our received legal tradition. Procreation provides the “coherence” for our received definition, the thing that explains its core features, in way that other reasons do not. The California Baker court in 1859 laid out the the prime reason as procreation and a second reason as the happiness of the couple. Fair enough. But how does the happiness of the couple explain why two and only two people can get married? Or why two people, in order to be happy, must have sex?
By contrast, procreation (or to be more accurate, managing the procreative consequences of sexual attraction between men and women) provides an answer to all these questions: Why two? Because two and only two people make the baby. Any other arrangement involves not a full union of parents but a subdivided one. Why a sexual union and not some other loving kind? Because sex makes babies.
One of the problem SSM advocates have is coming up with an alternate reason for marriage that explains why, out of all the intimate relations adults forms, only certain kinds of interpersonal unions are eligible to be marriages. Marriage is about love they say. Legally, love defines marriage even less tightly than procreation. You can love your mistress and hate your wife, and that doesn't mean your mistress is your wife. You can love many people but only have one wife. Why? And why do you have to have sex with people you love? (Note: I'm not arguing that SSM will lead to polygamy. Personally, I think it will lead to de-institutionalization of marriage altogether, not to polygamy.Instead I'm pointing out that under their theory of why marriage exists, advocates of SSM cannot explain any of marriage's ordinary legal features).
2. Universality. Many features of our specific marriage system are not universal. Monogamy for example, is the exception in human history (although most large complex societies have this marriage system). But all of these systems (with very few and very limited exceptions) define marriage as male and female. Why? You don't find that many human universals.
BTW this is true even in the many small tribal societies that institutionalize and approve same-sex (male) relations in many contects. That is these societies also seem to reserve marriage for those relations that are as Kingsley Davis said socially approved for sexual intercourse and baby-making.
The argument I am making is this: every society needs to come up with some solution to the fact that the default position for male-female sexual attraction (that is unregulated by law or society) is many children in fatherless homes. The second human reality societies must face is that procreation is not optional, it is necessary. Individuals don’t have to do it but societies do. The word for the social institution that addresses these problems, in this and every known human society is marriage.
Sex makes babies, Society needs babies, babies need mothers and fathers.
I think there is powerful evidence that these facts on the ground really do explain marriage in some sense better than any alternative explanation on the table.

[taken from this post]
Gallagher explores her ideas in much greater depth, and offers many citations to relevant studies and statistics, in this law review article.
Let me end this portion of the essay by positing this question, which was inspired by (the less kind might say stolen from) this post at a blog called The Opine Editorials: If the public purpose of marriage law is not an attempt to regulate procreation, then what is it?
In the concluding part of this essay, I will attempt to round-up the arguments as to the harm that will befall the institution / status of marriage should it be extended to same-sex couples.

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