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Friday, February 13, 2004

Gay Marriage Opponents' Tortured Reasoning

Dan Kennedy has a better wrap-up article on yesterday's debate than anything in the Globe. Scot Lehigh shoots some fish in a barrel by trashing Tom Finneran, not so difficult to do after Wednesday's shameful performance by the speaker, and Derrick Z. continues to run intellectual circles around the anti-gay black clergy of Boston.

But the most interesting op-ed in today's Globe on the issue comes from Rev. J. Donald Monan, the chancellor and former president of Boston College. I realize he may not have written his own headline, but the title on the piece is "'Equal' does not mean 'same.'" Apparently defense of the separate-but-equal doctrine is alive and well.

I admit I've read the column a few times through and I can't make much sense of the thing. Monan starts out by noting that the SJC examined the possible reasons for making heterosexual marriages different under the law. One reason they considered and rejected was that only heterosexuals can have children.

But, the court argues, since civilly legal marriage is not dependent for its existence on fertility or consummation and marriage licenses are issued without regard for procreative ability or intention, the rationale for disparate treatment based on procreativeness collapses.

What this argument conceals is a massive supposition -- a straw man the court itself placed in the defendant's field, namely, that "marriage is procreation" and that actual procreation is the "sine qua non" of every marriage.

In short, having assumed that any relationship to procreativeness would have to mean actual child bearing in every instance of marriage, and having recognized how contrary to fact this position is, the court then freed itself to define marriage without any reference or relationship whatsoever to procreativeness. "It is the exclusive and permanent commitment of the marriage partners, not the begetting of children, that is the sine qua non of civil marriage." "We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others."

Mistakes in argument do not invalidate court decisions. And words themselves have no a priori, permanent meaning. But the issue here is not words; it is about realities -- the relationships the words stand for. Words mean what we agree they shall mean, but mustard is still not a bird, as Alice reminded the duchess, and the difference between same- and opposite-sex relationships merits them significantly different roles in human life without either being relegated to a second-class example of the other.

I think what he's getting at is that even if heterosexual couples don't have kids due to infertility, old age, not wanting to deal with youngsters, etc., there's still the general relationship between male and female that bears some relation to bearing children at least in theory, if not in fact. Demanding "actual procreation" is a "straw man" in the Reverend's view--he prefers that the court look at "procreativeness." As I say, I may be interpreting this incorrectly since the writing is pretty shoddy, but he seems to be advocating plain old prejudice in favor of heterosexuals just because they're heterosexual here, even if there is nothing that comes along with that heterosexuality (like the couple's shared biological children) to make it tangibly different from a same-sex union.

So what does Monan's critique leave us with? He says that some "scholars" with whom he seems to agree believe that a way around the SJC ruling is for the legislature to go back and define in law some reasons for why heterosexual marriage deserves differential treatment from same-sex unions. Then, "the court's willingness to examine the full range of reasons should allow it to stay its order until the Legislature has time to reenact and litigate a statute in which reasons for differential treatment are expressed anew." But what new reasons are these? Doesn't the Revered think the lawyers arguing against the Goodridge decision already tried all of the main, and potentially legally valid, reasons? And doesn't the SJC's position staked out in the opinions on the matter suggest that they're not going to change their minds over something so vague, undefined and broadly discriminatory as what Monan tries to describe in this essay?