This argument is even loonier than I thought. Jeff Rosen has a good whack at it over at TNR today.
The concern of the responsible procreation caucus is, as I suggested yesterday, the growing number of children born out of wedlock. The theory is therefore that this sad statistic proves that straight people can't control their animal instincts, and, since they can procreate anytime (at least up until a certain age, as Kagan drily noted) and find themselves facing the prospect of raising a child...wait. I've paused in the writing here because I think I'm getting this wrong. It's such pretzelish logic that I can't even paraphrase it. Rosen quotes from a brief prepared by the office of Virginia AG Ken Cucinelli:
When two people become parents by way of artificial insemination, surrogacy or adoption, they have not procreated--at least not with one another. Hence, what is missing is society's interest in encouraging couples to consider and plan for the children that inevitably result from impulsive decisions to act on sexual desires. The sexual activity of same-sex couples implies no consequences similar to that of opposite-sex couples.
Indeed, to the extent same-sex couples must take intentional, non-sexual action to become joint parents, such conduct vitiates the need for government involvement. States may assume that couples who by definition can acquire parental rights only through intentional conduct need no further societal approbation or regulation--they are already focused on the consequences of their actions. It is where the parenting may be unintentional, where couples act impulsively while ignoring the consequences, that social ordering is necessary.
So: Because gay people have to plan conception with care, they don't need the institution of marriage to protect them and their children. They have already behaved responsibly and they require "no further societal approbation" (I think I've known a lot of gay people over the years who'd be rather surprised to learn that they require no further societal approbation!). Whereas the crazy straights, they fuck like animals and can't control themselves, and therefore they--and they alone!--must have the institution of marriage dangled in front of them as a sort of last-ditch hope that they'll, well, straighten up and fly right.
No one can take this seriously. Not even Scalia and his gang. But they make arguments like these because they can't say what really motivates them, which is moral repulsion at homosexuality. The can't say that because, thank goodness, you just can't say that anymore in the United States--well, many still do, but they are increasing and properly seen as bigots. But they also can't say it for legal reasons, which Rosen does an efficient job of reminding us:
The real reasons that motivated a majority of California voters to oppose gay marriage were moral disapproval of homosexuality (which is sometimes religiously based) and a desire to maintain the traditional definition of marriage, because of a sense that the institution is embattled and deserves as much stability as possible. For better or for worse, however, the Supreme Court has ruled that both of these reasons are constitutionally illegitimate. In the 1996 Virginia Military Institute case, Justice Ginsburg held that maintaining tradition for its own sake is not a constitutionally permissible goal. And in striking down sodomy laws in the 2003Lawrence v. Texas case, Justice Anthony Kennedy held that moral disapproval is not a legitimate justification for a law either. “The fact a State’s governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,” he wrote. That’s why Justice Scalia was correct to predict in his Lawrence dissent that “this effectively decrees the end of all morals legislation,” and would lead inevitably to the legal recognition of same sex marriage.
I wonder how much the Federalist Society invested in this cockamamie responsible procreation idea. I hope millions!
