Kenji Yoshino responds to Robert P. George' second attempt to justify banning gay marriage.
Kenji Yoshino responds to Robert P. George' second attempt to justify banning gay marriage.
The law, lawyers, and the court.
Dec. 21 2010 4:40 PM

Lose the Baseball Analogy

My response to Robert P. George's second attempt to justify banning gay marriage.

(Continued from Page 1)

This analysis brings me to the co-authors' next objection—that I "indulged in pejorative labeling" when I stated that the common procreation argument "demeans" and "denigrates" opposite-sex couples who do not procreate. The authors interpret words like "demean" and "denigrate" to be forms of rhetoric "designed to exploit caricatures of conservatives as mean-spirited bigots out to thwart those not like themselves." This interpretation confuses an argument about dignitary harm with an aspersion directed at them. Resting marriage on a common procreation argument tells some people within an institution (marriage) that they have a right to be there even though they are not fulfilling its core purpose. In doing so, it ranks their marriages below the marriages of those who are fulfilling its core purpose. When I describe that as demeaning, I am making a substantive point about the subordination entailed by the article's logic.

Similarly, I stand by my view that the common procreation argument, as elaborated by George and his co-authors, "denigrates" parents who have adopted children. As I observed in my critique, the original article states: "Children, likewise, have only two parents—a biological mother and father." The direct implication of this statement is that an adoptive parent is not the parent of his or her child, as he or she is neither the biological father nor the biological mother of that child. So I disagree with George and his colleagues when they state that they "neither said nor implied ... that adoptive parents are not real parents." In their response, George and his colleagues say that I have so misrepresented their position that it would be "fruitless to respond in kind." Given that I have simply quoted a statement they make, I remain interested to know why they believe individuals who adopt can be the parents (much less the "real parents") of their children. For if married couples who adopt are truly the parents of their adoptive children, it becomes less clear why the special biological link between parents and children can be a ground for defining the nature of marriage to exclude same-sex couples.


Finally, George and his colleagues accuse me of "studiously ignoring every challenge" they pose, particularly the challenge to advance my own definition of marriage. Given the context in which I joined the fray—an examination of the argument made in the California lawsuit—I thought the answer would be intuitive: I want the institution of marriage to widen to permit same-sex couples to enter it. George and his colleagues have ready-made objections for such a statement. First, they say that permitting same-sex couples to marry would distort the institution, such that this debate cannot be framed solely in terms of increasing access. Second, they assert that permitting same-sex couples to marry would lead us down a slippery slope that would press us to recognize polygamous relationships as marriages. I take up each argument in turn.

George and his colleagues draw a stark distinction between laws barring inter-racial marriage, which they unequivocally oppose, and laws excluding same-sex couples from marriage, which they unequivocally favor. They state that "antimiscegenation was about whom to allow to marry, not what marriage was essentially about." Yet when anti-miscegenation laws were being litigated, prominent players in the debate said they were both about the question of "who can marry?" and the question of "what is marriage?" For example, the trial court in Loving v. Virginia (the case in which the Supreme Court later struck down state bans on interracial marriage in 1967) made a natural law argument against interracial marriage: "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix." In upholding that opinion, the Supreme Court of Virginia said that the state could legitimately seek to prevent "a mongrel breed of citizens." At stake was the purpose of marriage, which was viewed as the state's vehicle "to preserve the racial integrity of its citizens." Today, all these arguments seem ludicrous. But they were made by courts, not fringe figures, only a half-century ago. 

The obvious rejoinder is that marriage has worked itself pure—that we have cleared away what marriage is not to arrive at a true understanding of what marriage is. But those who have propounded trans-historical, much less eternal, definitions of marriage have often been time's fools. Fifty years from now, I expect new challenges will be made to the definition of marriage. Yes, such challenges could take the form of challenges to recognize polygamous marriages (in fact, such challenges would not be new, as they were made on grounds of the free exercise of religion in the 19th century). Currently, I would distinguish polygamous marriage primarily on the intuitive ground that one can give one's full self to only one other person—that is, that the "undivided commitment" the co-authors praise can be valuable even in the absence of common procreation. But I would prefer to test such intuitions if and when such debates become live national controversies. I do not purport to know where future challenges will arise, or how those challenges might require us to reassess the purposes of marriage. I refuse to answer the question "What is marriage?" by saying "Marriage is one thing, always and everywhere, for all people." I regard that refusal as a strength, rather than as a weakness, of my position, as I do not think we stand at the end of history today.

Traditionalists often speak in terms of a timeless "ideal" family. George and his co-authors speak in this vein when they ask in their response if I "deny that children deserve to be raised, wherever possible, by a mother and father—that this is worth promoting as an ideal?" The answer is yes, I do deny that claim. As I noted in my critique, "the research comparing the kids of gay adoptive parents to the kids of straight birth parents shows that the first group fares just as well as the second." More broadly, when people in the marriage debates ask whether I would not wish to promote an "ideal," I find myself asking "which ideal?" Liberty, equality, and justice are also ideals, and only time will reveal what they require of us. The co-authors evade the force of these ideals by defining marriage according to the unsustainable common procreation rationale. Once this argument is properly retired, marriage returns to the field on which these larger ideals can shape it. For me, for now, it is enough to say those ideals require the recognition of same-sex marriage.

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Kenji Yoshino is Chief Justice Earl Warren professor of constitutional law at NYU School of Law and the author of Speak Now: Marriage Equality on Trial.

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