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Sweet Seventeen: The Significance of New Mexico's Gay Marriage Ruling

12/20/2013 03:14 pm ET | Updated Feb 02, 2016
  • Nathaniel Frank Author, 'Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America'

The New Mexico Supreme Court has just made the Land of Enchantment the 17th state to allow same-sex marriage. The ruling came down the same day that hundreds of Catholic high school students in Washington state staged a sit-in to protest the firing of their assistant principal for marrying another man. Taken together, the court ruling and the student protests -- a passionate defense of marriage equality by the future of American Catholicism -- should be a warning to the Catholic hierarchy and the lay intellectuals who have provided the funding and brainpower for the modern anti-gay-marriage movement: They're losing, and the sooner they give up, the better chance they'll have of walking away without destroying themselves.

The latest rationale in the fight against same-sex marriage was best crystallized in the (losing) argument in defense of Prop 8, California's voter-backed initiative to ban gay marriage, which was struck down by the U.S. Supreme Court in June. In oral argument, Charles Cooper, attorney for the opponents of same-sex marriage, told the Court that restricting marriage to male-female unions furthered society's interest in "responsible procreation" by preserving the normative ideal of marriage as something whose purpose is procreative.

Yet, if marriage was ever primarily about procreation, it ceased to be long ago. Widespread contraception wholly changed the game in the mid-20th century, and the Supreme Court has said that prisoners can marry, even if they have no chance of procreating. Culturally, few of us tend to think twice if a post-menopausal woman gets hitched, or if any second (or third) marriage seems utterly unlikely to yield children. We still go to the wedding, and we certainly don't try to bar them from the freedom to marry (again).

The phrase "responsible procreation" has the distinct ring of having been birthed at a convening of conservative activists desperate for a solution to the obvious -- that very few Americans continue to view marriage as a permission slip for procreation, or procreation as an obligation of marriage. And it has the added benefit of sticking the word "responsible" into the mix, a dog whistle to those who view homosexuality as a form of inherently irresponsible behavior.

Fortunately, when these folks trotted out their "responsible procreation" line of attack before the New Mexico supreme court, the justices bothered to go and look at the historic purpose of its marriage laws. This is what they found:

"The history of New Mexico's marriage statutes does not support the contention that the overriding purpose of [the law barring same-sex marriage] is 'responsible procreation and childrearing.' Our review of the marriage statutes dating back to 1862 has not revealed any language, either implicit or explicit, that requires applicants for a marriage license to attest to their ability or intention to conceive children through sexual relationships. Counsel for the opponents of same-gender marriage also cannot cite to any such language."

The court concluded: "Procreation is not the overriding purpose of the New Mexico marriage laws."

So what is marriage for? According to the court:

"the purpose of the New Mexico marriage laws is to bring stability and order to the legal relationships of committed couples by defining their rights and responsibilities as to one another, their property, and their children, if they choose to have children. This purpose is self-evident from the structure of our laws."

Instead of paeans to fake "family values" that social conservatives deploy to denigrate gays and their families, New Mexico has a law actually designed to support the care-taking function of all families. The existence of that law, the Family Preservation Act of 1978, said the court, "supports our conclusion that the overriding purpose of our marriage laws is the stability of marriage for the benefit of married couples and their families... whether they are procreative or not."

It's never been clear how, exactly, letting gays marry could thwart the "responsible procreation" of straights -- except in the minds of those who so loathe gay people that they'd refuse membership in any club that admits them. The best effort at an answer seems to be about norms: Even if any given straight couple is infertile, separating marriage from procreation is a dangerous game that could spur many people to toss the whole thing aside. In the words of one conservative scholar quoted in Justice Alito's dissent in the Supreme Court opinion striking down the Defense of Marriage Act: "The legalization of same-sex marriage would send a message that would undermine the social boundaries relating to marriage and family relations" and cause grave "confusion of social roles linked with marriage and parenting." Of course, there's never been any evidence that people think this way. And as approval of homosexuality keeps growing, the notion that straights will avoid getting hitched rather than share the honor with gays is less and less convincing.

But the New Mexico Supreme Court reminded us this week that none of this matters. You can't just make up rationales as you go along and hope they stick. The state -- at least the state of New Mexico -- does not privilege marriage as a way to make impulsive young men stick by their kids. It sanctions marriage to help strengthen the commitments of couples and families -- real families. And that includes gay ones.

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