Friday, February 18, 2005

Nonprocreation and law

Interesting discussion on gay marriage here in the comments.

Here's my contribution:

smijer wrote:

"[O]ur society would not tolerate legal obstacles to marriage for people who cannot naturally reproduce. [...] So, the argument that marriage is "for" reproduction fails, because under that view it would be unobjectionable to erect legal barriers to non-reproductive marriage."

Marriage, conceptually, is a one man one woman bond for the purpose of procreation. We translate this concept into law by saying (with a few exceptions) that any man can marry any woman. It is an imperfect approximation that has arisen over the years, but the law always contains some degree of arbitrariness, even as it tries to meet a specific goal--for example, we think that rational citizens should be allowed to vote, so we set a voting age. Marriage should be about procreation, so we say that one man and one woman should be allowed to get married, which is a pretty common-sense standard for this.

But, yeah, its true that nonprocreating unions will be formed under this, just as rational people under 18 will be denied the vote and irrational people over 18 will be given it.

To rephrase your quote above as a question, "why would we find it objectionable for legal barriers to be erected to non-reproductive marriage, if marriage is supposed to be about procreation?"we would find it objectionable because all the years of associating marriage with both "one man one woman" and "procreation" have made each element a part of the whole, regardless of the correctness of that view. Its the case in law that we could prevent all violations if we made the government powerful enough in enforcing them (like put in cameras at stop lights, or have mandatory house inspections for illicit drugs)... but I prefer small, unintrusive government, so that is why I would find it objectionable. One man one woman is simply the best rule of thumb for procreation that we can have, without an intrusive government.

I should note that I sit the fence on gay marriage. I'll argue for either side, depending on who I'm arguing with--I just find it to be a fascinating subject. When I'm arguing I either take the conservative position against gay marriage (protect the institution of marriage), the libertarian position against (government shouldn't be involved in marriage at all) or the conservative position for gay marriage (denying two loving, caring individuals the right to marriage does more to harm the institution than help it, and marriage might also help in bringing the reckless, AID's spreading behaviors of many gays under control).

Yeah, that's right, the conservative position for gay marriage. I don't even consider the liberal argument for gay marriage (some blather about "equality" or somesuch) to be an actual argument (I have the same trouble as Keith), whereas the conservative argument for gay marriage I find very compelling. Here's Andrew Sullivan, a prominent gay conservative (although he has trended left lately), on the conservative case for gay marriage.

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