If you’ve been following the US Supreme Court’s descent into nonsense over the past near decade, Antonin Scalia’s cheerful assistance of the defendant attorney Charles Cooper’s very strange argument that procreation is essential to marriage except when it’s not shouldn’t surprise you too much. Here’s the transcript of how Scalia and Cooper talked over Justice Kagan to get out of the logical mess they walked into. It began with Cooper splicing what was really meant by regulating procreation:
Elena Kagan: Mr Cooper, supose a state said that, because we think that the focus of marriage should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55. Would that be constitutional?
Charles Cooper: No, your honor, it would not be constitutional.
Kagan: Because that’s the same state interest, I would think. You know, over the age of 55, you don’t help us serve the government’s interest in regulating procreation through marriage, if you are… So why is that different?
Cooper: Your honor, even with respect to couples over the age of 55, it is very rare that both couples- both parties to the couple are infertile, and the traditional-
Kagan: No, really because if the couple… I can assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage.
Cooper: Your honor, society’s… society’s interest in responsible procreation isn’t just with respect to the procreative capacities of the couple itself. Fidelity and monogamy, your honor, advances the interest in responsible procreation by making it more likely that neither party, including the fertile party to that… the martial norm, which imposes the obligations… [Scalia interrupts to joke about infertility exams and how Senator Strom Thurmond fathered a child when 68, with his then 25 year old wife]
Did you catch that? Individual states allegedly have the right to ban marriages between couples which are infertile as a result of their sexual or gendered composition, but not when because of their age.
(Hilarious misunderstanding ensued! From here.)
This obviously fails its own test, in that just as many older straight men who are married to post-menopausal straight women can indeed have children with other women, many queer people who are in an infertile same-sex or same-gender relationship can indeed have children with other potential partners. Expectations of fidelity are a unifying theme, and the perception that those are necessarily exotic concepts to queer families is suggestive of how much straight people believe they have exclusive cultural property over.