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Susan Estrich
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Marriage Without Pregnancy


The briefs opposing gay marriage in the two cases currently under consideration in the Supreme Court are strange to say the least. Unlike past battles, the briefs do not argue that homosexuality is immoral. Major step forward. Sex is fine. Marriage is the problem.

Why? In short, because gay partnerships do not produce unwanted pregnancies.

Limiting marriage to opposite-sex couples is justified because it "reflect(s) a unique social difficulty with opposite-sex couples that is not present with same-sex couples — namely, the undeniable and distinct tendency of opposite-sex relationships to produce unplanned and unintended pregnancies. ... Unintended children produced by opposite-sex relationships and raised out of wedlock would pose a burden on society."

You read that right. Limiting marriage to opposite-sex couples prevents out-of-wedlock births. "It is plainly reasonable for California to maintain a unique institution (marriage) to address the unique challenges posed by the unique procreative potential of sexual relationships between men and women." Since same-sex couples "don't present a threat of irresponsible procreation," they don't need to get married.

Respectfully, this makes absolutely no sense. For one thing, heterosexual marriage does not prevent children from being raised by unwed mothers. If only. For another, the fact that gay couples do not have unintended pregnancies is hardly a reason they should not be allowed to marry. If only those who could have children were allowed to marry, there would be no reason to allow any woman over a certain age to marry.

And yet we do. Of course we do. My two favorite stories in last Sunday's New York Times Style Section, which reports on weddings and relationships (I am not the only one who calls it the ladies' sports page), report on late-life marriages.

In one, there is a beautiful picture above the wedding announcement of a 97-year-old bride (she is keeping her name) and her 86-year-old groom, a widow and a widower who met five years ago.

The other is a first-person account by Eve Pell, who married when she was 71 and her husband-to-be was 81, titled "The Race Grows Sweeter Near Its Final Lap." They met when he was 77, because they belonged to the same running club, and she devised a plan with a mutual friend to invite him to a screening at the friend's home. Very "seventh grade," she wrote. "We had nothing to do but love each other and be happy. ... We followed our hearts and gambled, and for a few years, we had a bit of heaven on earth."

Neither of these marriages, like so many others, was necessary to serve the state's interest in promoting two-parent families. They were based, pure and simple, on what Pell calls "one of the most precious blessings available to human beings — real love."

Nearly half a century ago, the Supreme Court held that this blessing should not be limited to couples of the same race, as it had been in Virginia. In 2013, it is time for the Supreme Court to hold that it should not be limited to opposite-sex couples, any more than real love is.

This court does not want to be remembered as the court that decided the Dred Scott decision of its time: a case that held that a slave could not sue in federal court for his freedom, a case that is regarded in retrospect as one of the lowest moments in the history of the Supreme Court. I think the Chief Justice John Roberts knows that. I think Justice Anthony Kennedy, who wrote the landmark opinion in Lawrence v. Texas striking down Texas' sodomy laws, knows that.

I think the opponents of gay marriage are fighting a battle they will not win, and the weaknesses in the briefs filed by these distinguished lawyers reflect that.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at



10 Comments | Post Comment
First, let me state that I'm a physicist, not a biologist or sociologist. That having been said, I'll step outside my area of expertise and make some biological/social arguments concerning marriage.

Concerning gay marriage, Ms. Estrich wrote: "The briefs opposing gay marriage in the two cases currently under consideration in the Supreme Court are strange to say the least. .... Major step forward. Sex is fine."

Yes, it certainly is. How banal.

Ms. Estrich further elaborated: "Marriage is the problem. Why? In short, because gay partnerships do not produce unwanted pregnancies"

In fact, gay marriages do not produce any pregnancies, wanted or unwanted. This is not some trivial difference. The purpose of the marriage laws in this society is to provide some basic protections to the weaker parties (i.e., The mother and children) in a family unit. Their purpose is to ensure that a mother and child are not thrown out on the woodpile as they become less attractive or more demanding. They make procreation less risky (not riskless) for the mother and are intended to ensure the stronger party in the family (i.e., The man or the parents) doesn't abandon the unit or the children without providing proper supports (either willing or forced).

Men and women can engage in sex whenever they wish. It is unskilled labor and comes, more or less, naturally. This debate is not about prohibiting sexual relations. It is about the consequence of those relations in opposite sex couples. When women get pregnant without the benefit of marriage, they can have a hard time of it. Despite laws and programs to help unwed mothers, they end up in poverty at an alarming rate. The purpose of marriage laws is to mitigate these risk for the weaker adult partner (i.e., the woman) in a marriage.

Hence the real purpose of marriage laws. Society needs opposite sex couples to produce the next generation. It provides basic protections and other benefits (e.g., tax breaks) via marriage to encourage this activity. Simply put, opposite sex couples do some pretty 'heavy lifting' for society and the human race. They produce and raise to adulthood the next generation. Marriage laws are intended to encourage this otherwise risky activity by making it easier and a bit safer. Opposite sex couples do no such "heavy lifting", so why should they recieve the benefits of marriage? (This couldn't have anything to do with societal recognition or tax breaks could it?)

Ms. Estrich then attempts to provide some reasons to support same sex marriage by noting a few, rare, octogenarian nuptials and stating: "Neither of these marriages, like so many others, was necessary to serve the state's interest in promoting two-parent families. They were based, pure and simple, on what Pell calls "one of the most precious blessings available to human beings real love."

These examples are heartening, but hardly germane to the argument. The marriage laws in most areas simply imply that the couple will be opposite sex. Lower age limits and sometimes health requirements are set, again to protect all the partie to the marriages. No upper age limits are set by these laws because octogenarian marriages are rare. (N.B., In any case, an older or same sex couple can get most of the same benefits of marriage (e.g., inheritance, power of attorney) already by visiting a good lawyer (like Ms. Estrich).) The laws assume same sex couples can produce children and don't set complicated tests to determine whether that is the case or not. Why make marriage that difficult? Just to make everything exactly equal for same sex couples for whom the societal purposes of marriage clearly don't apply?

For whatever reason the older couple may have gotten married, societies goal in letting them marry was not to encourage "real love". If it was, why can't I marry my mother, my sister, my aunt, my first cousin (in most states) or more than one partner? After all, if it was all about "real love", why would we rule out any of these couples? I suspect if Ms. Estrich digs into the reasons for these prohibitions she will find they are for the protection of the potental children (N.B., Not discouraging intimate relations between consenting individuals or make these individual feel bad about themselves). Imagine that, procreation based prohibitions on marriage!

Ms. Estrich further writes: "Nearly half a century ago, the Supreme Court held that this blessing should not be limited to couples of the same race, as it had been in Virginia."

Surely a correct decision. Multiracial couples can and do raise families and the state has no valid reason to stop them. Society, in fact, has every reason to encourage them to raise well adjusted citizens. Why does this imply that same sex couples need or deserve the benefits of marriage? There is no analogy here. These couples won't be reproducing anytime soon.

Finally Ms. Estrich writes: "In 2013, it is time for the Supreme Court to hold that it should not be limited to opposite-sex couples, any more than real love is... I think the opponents of gay marriage are fighting a battle they will not win, and the weaknesses in the briefs filed by these distinguished lawyers reflect that."

As noted above, encouraging or recognizing 'real love' is not the purpose of societal marriage laws. NOT recognizing this basic fact results in a far weaker 'brief' than anything the opponents of gay marriage have produced. I'm afraid that the pro gay marriage forces really don't have a coherent argument here. What same sex couples can reasonably expect (tolerance and no prohibitions on their sexual activity) the law already provides them. Demanding that society change the purpose of a 10,000 year old institution just so they can recognize their 'real love' is crazy.
Comment: #1
Posted by: Old Navy
Wed Jan 30, 2013 4:42 AM
God disagrees with you...again!
Comment: #2
Posted by: Oldtimer
Wed Jan 30, 2013 5:02 AM
Re: Old Navy;...Sir, .. I would say that if people have love for one another they have the best possible quality of any relationship compared to which formal recognition is only so much nonsense...
I trust that demands for legal marriage for same sex couples, while it may offer access to commonly offered spousal benefits, it is really about an across the board recognition of gays and lesbians as equal citizens in society, equal in their needs and rights to protection from society, and equal across the board...
Certainly, in the sense that they obey the law and pay their taxes they are absolutely correct to demand such protection, and ideological or dogmatic objections to such behavior or rights does not really have a place in the argument...
Freedom of religion may demand that no priest, minister, sect or authority need bless that union; but for the churches to have any say in the matter politically- is an abuse of religious privilage...
I do not expect them to shut up, or leave off in their interference, but have they not better things to do than mess with private citizens only wishing some peace and recognition of their rights???... Until same sexers have equal rights and recognition of their social equality, all their rights are uncertain...Objectively, based upon our history, I don't think anyone can say that the churches have ever stood for rights, equal or otherwise... They have instead misconstrued their privilages as rights, though it is out of our rights that their privilages were granted...It can easily be seen why the churches were granted their privilages in the light of English History, but it is obvious that their privilages were only for their own service, and have been very much abused in the United States...
It is not justice that the rights of any common citizen should be abridged over privilages claimed by the church... In their attack on rights, the churches have always cut away at the very branch they stand on...They think their rights are granted by God... Then why the trouble of writing it into the constitution??? Their privilages are no better than our rights, and for them to stand united against civil rights only means it is time to end their privilages... Let them enjoy equality with us, or move on to greener pastures... Let them be like all of us, with rights on our good behavior...
Comment: #3
Posted by: James A, Sweeney
Wed Jan 30, 2013 9:06 AM
Re: Oldtimer;... If you speak for God; do you act for him as well, and if so, with what warrant???
Comment: #4
Posted by: James A, Sweeney
Wed Jan 30, 2013 9:08 AM
Marriage has been the most integrated institution in our society. It has always consisted of a person of one gender and a person of the other gender. Now there is a movement to segregate marriage: people should be allowed to exclude one gender or the other. This resists the trend of diversity which usually is a goal of our social policy.
In addition, children reared by heterosexual parents have an opportunity of interacting with adults of both genders. This is a worthwhile practice since exposure to both genders reduces the likelihood that children will acquire prejudices against one sex or the other.
Further, under law children of a heterosexual marriage are presumed to be the offspring of the married couple. With homosexual marriage we must presume that a child cannot be the genetic offspring of one of the "parents". Regardless of what laws we pass then children of a homosexual marriage will never be equally situated with children of a heterosexual marriage. While we can resist the effects of stigma, we cannot deny the fact that a child of a homosexual marriage cannot be the biological product of the marriage.
Since there are innate differences between heterosexual and homosexual marriages society has the right to distinguish between the two types of marriages and favor one over the other. I have always felt that this was a states' rights question whether to allow same-sex marriage and that nothing in the Constitution made it a civil rights issue.
Comment: #5
Posted by: Cowboy Jay
Wed Jan 30, 2013 12:35 PM
Re: Cowboy Jay... Like Anni Defranco said: Women learn to be women and men learn to be men....
Culturally, girls can learn to be submissive, to live through their husbands, to defer to them though they have better sense and more profound reasoning, and to some times play second fiddle to a bum who can't hit all his notes...
Because I worked a dangerous job, I wanted a strong and stand alone wife... I will make no excuse for having married a disagreeable wife, and I wouldn't mind it as much as I do if she were not so invariably right even when she is wrong; but while she may be sending my daughters the message of self assertion and freedom, even vocal discontent at times, this is exactly what I want for them...
I understand completely the value of a settled matter... In Muslim countries women are not lewd in public, or sass their husbands... I do not believe for a moment that men behind the scenes do not seek the counsel of their wives, or that they or their society are improved -if they do not... What is the value of a second head denied education or expression??? If love is medicine, a man's mate is his doctor, and what is the point of the wait if you can't take the advice???
The value of women, if I may front it so boldly is not in their ability to bear children or move furniture... It is the fine minds they have, and their sensitive natures that make them good friends and great company... And I do not suppose men with men, or women with women are any different... First of all; relationships are never equal, never without their disputes and dramas, and they are not without their politics...
All relationship, even of a person with his or her nation, are essentially one on one multiplied, and all have their politics which is their expressed personality... Shakespeare said that when two people ride a horse, some one has to sit in front... I have found that I don't have to sit in front all the time, and it really does not matter if the goal of each party is the same...
What children learn primarily from healthy and successful relationships is how to relate, regardless of the form... People who cannot relate cannot relate regardless of the form, and these are the dangerous people who too often kill...I can still take offense at gays asking for the family rate at the zoo when they have no children, but I would think the same of heterosexual couples... Raising good children into good adults is a labor of love to society, and children raised without love are poison for society... As a challenge, raising children is a difficult task that is made more difficult every day; and society, church, economy and government are not helping...
Children are a load parents are forced to carry alone... And it is easy for the cruel to say: Well, they are their children... This is false... My children are not my property, and never were... Some people are possessive of their children, and try to imprint them with their religious, political or world views....They see their children as an extension of themselves rather than as a continuence of the life they were themselves given... And next to criminal, is all the inhumanity people will be a party to, to leave their own children more well off than the next... Marx was correct long ago to say children needed protection from their parents... Back then, the parents would dope their children up so they could go to work without dragging their hungry crying babes into hell with them, and then, would later sell them into factories or mines for a cut of their wages... Today things are little better... Televisions raise so many, and violence within the home teaches the worst solution to pain and frustration... But as bad as parents can be to children, children can be the worst tyrants of all... They learn early to call 911, and no one can afford trouble with the law, so adults give ground... Parents and teachers find they have no power, but only empty authority; influence, and no recourse if the child will not respond to what they offer...
To be honest; I love my children, but I think I would not have married or had children knowing how impossible it is to mantain relationships through the vicissitudes of life...I didn't do well with help, and could never have done it alone... And now I understand what I learned through anthropology, that in times past, grandparents often raised grandchildren to leave parents free for labor, and also, I know now why most marriages were some form of group marriage, as we see even in our own Bible... It takes more than just two parents... If it does not take a village; it at least requires a family to raise a family, and so many of our families are atomized, and incapable of rendering effective support to their members...
As far as sexual identity goes, why fight what is natural... If a native girl wanted to play with a bow, or a boy wanted to wear an apron; then each got the toy that forcast their future, and all got on with their lives...It is children who find who they are, and they who choose their role models from the examples society offers as a buffet...I think most parents present rather bad examples, but we learn most from them...
Comment: #6
Posted by: James A, Sweeney
Thu Jan 31, 2013 5:26 AM
I see an easy comprimise here that no one seems to be talking about. The gays want to be toegther and have all the legal benifets of marriage. The opposition dosen't want the word marriage to be used for anything other than man&woman. So lets give the gays all the legal benifets of marriage, and call it something else. A term like that already exists, its called civil union.
Comment: #7
Posted by: Chris McCoy
Thu Jan 31, 2013 6:04 AM
Re: James A, Sweeney
I speak as a Christian, you speak as an athiest or non-Christian. That's our difference.
Comment: #8
Posted by: Oldtimer
Thu Jan 31, 2013 6:11 AM
Re: James A.Sweeney

I can't say I fully understand your arguments. I think you support allowing same sex couples to have all the same benefits that opposite sex couples do. I base this on your statement that "... I do not suppose men with men, or women with women are any different".

While I might agree that these couples are the same from the standpoint of "love" or the law, I disagree when it comes to shoe-horning them into the existing structure of civil marriage. Let me be blunt, opposite sex couples produce children and same sex couples do not. Many of the benefits of civil marriage are intended to encourage and support procreation. Hence these benefits are for opposite sex couples.

It is constitutional to write laws that benefit one group over another so long as there is a rational basis to the distinction in the law (N.B., Something missing from the old prohibitions an multiracial marriage). The federal government provides tax breaks for morgage payments to people who are buying a home. They do it to encourage people to buy homes because it is believed (rightly or wrongly) that this is good for society. Is this unfair to people who are renters? Why can't they deduct their rent from their federal income tax? This is because renters and home owners are completely different groups and the government is trying to encourage one activity and not the other. Renters can become a homeowners if they wish (or vice versa), but when they do their benefits change. There is nothing irrational about the government doing this.

This is perfectly analgous to civil marriage. A rational basis for the present laws exists. Simply put, civil marriage is not intended for same sex couples and the reasons for this is are perfectly rational.

Not everything in life is fair. That is the case here. There is no constitutional argument to extend civil marriage to same sex couples. In fact, the arguments to change a 10,000 year old institution to incorporate an agrieved minority are the ones that lack any real rationality. The Supreme Court will (hopefully) fall back on logic and uphold present marriage laws.
Comment: #9
Posted by: Old Navy
Thu Jan 31, 2013 10:07 AM
It's all about hate - not hate from the "conservative right" and Christians, but hate from the left, you know, the peace and love group. They hate conservatives and Christians (maybe not all but the bulk of the vocal majority within). This is another way to spit in the face of conservatism and Christianity - mostly Christianity. You don't see them singling out other religions, do you? Under the guise of law and rights and whatever is the need for them to feel "normal". Any organization who says they are not is in trouble. If they really felt confident in their beliefs, they wouldn't have an issue. That goes with any side on any issue.

So much for peace, love, freedom, rights.....
Comment: #10
Posted by: Truth never fails
Mon Feb 4, 2013 9:11 AM
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