During the oral argument in the Prop 8 case, Justice Kagan pointed out that if marriage really was all about procreation, we should not issue licenses to those over 55 because they are nearly always infertile. Peter Sprigg of the Family Research Council tries to offer a response that attorney Charles Cooper did not:
Perhaps Cooper was wary of appearing sexist to Justice Kagan if he stated the truth more bluntly—55-year-old women are virtually always infertile, but 55-year-old men are not. As frustrating as it may be to some feminists, there are some sex differences which cannot be overcome. (Justice Antonin Scalia tried to save Cooper with a joke about Strom Thurmond, the late U.S. Senator who continued to father children well into his 70’s, but it seemed to go over the audience’s heads.)
Society’s interest in promoting “responsible procreation”—the term most commonly used in defending marriage as the union of a man and a woman—involves not just promoting procreation itself, and promoting it in a responsible context (i.e., where the mother and father who make a child are both committed to the child and to each other through marriage). “Responsible procreation” also implies an effort to discourage irresponsible procreation—a quite plausible example of which might be a 55-year-old man going around impregnating fertile women (presumably younger than himself) who are not his wife.
Advocates for redefining marriage really ought to listen more, and laugh and scoff less—especially when they are in the Supreme Court of the United States. Otherwise they make themselves, not their opponents, look ignorant.
No, I’m afraid laughing and scoffing is still justified in this case. Even if Sprigg was right that marriage helps keep 55 year old men from impregnating younger women, so what? What does that have to do with allowing gay people to get married? The problem isn’t that Congress has no rational basis for wanting to encourage marriage; the problem is that banning gay marriage does nothing whatsoever to help achieve that goal and allowing gay marriage does nothing to undermine that goal. It isn’t enough that the goal be rational; the policy actually has to help achieve that goal. In this case, it’s like saying that Congress has a rational desire to encourage kids to stay in school and that’s why they adopted a law to ban red-colored crayons. The policy and the stated goal have nothing at all to do with one another.