Ed Whelan, whose views I discussed in Part I, has suggested that I did not accurately represent his position. He wrote the following (quoting from an earlier work and leaving out a line or two about originalism):
[T]he justification for the definition of marriage as the union of a man and a woman is the same now as it was in 1868. Marriage developed in this country, and everywhere in human civilization, because societies recognized that opposite-sex couples generally have the capacity to procreate. Marriage exists to increase the likelihood that children will be born and raised in stable and enduring family units by the mothers and fathers who, often unintentionally, naturally generated their very existence. As Prop 8 proponents showed in their Supreme Court brief (pp. 31-35), leading thinkers over the centuries—including many on the Left, like Bertrand Russell, anthropologist Claude Levi-Strauss and sociologist Kingsley Davis—have consistently recognized the central connection between marriage and responsible procreation and child rearing. This basic truth was commonly acknowledged until the recent movement to redefine marriage to include same-sex relationships made it fashionable to deny or obscure it. (Just a word or two on [the] claim—which I think irrelevant to the original-meaning inquiry—that the redefinition of marriage to include same-sex couples wouldn’t harm the institution of marriage. How odd to imagine that denying the central connection between marriage and responsible procreation and child rearing, and redefining marriage to eliminate that connection, won’t have a damaging long-term effect on the strength of that connection. Further, the New York Times tells us that there is plenty of reason to think that marriages of same-sex couples are much less likely to model the marital norms of fidelity and monogamy.)
I don’t mean to suggest that Segall’s misrepresentations of my position were intentional. I would suggest, though, that if you’re responding to someone else’s argument, it’s a good discipline to quote the key parts of that argument. Among other things, that will make it more likely that you actually understand the argument that you’re contesting. (Emphasis added.)I stand by my post. Nothing in the above shows a rational connection between the welfare of children or the strength of marriage and bans on same sex marriage that don't amount to legal animus towards gays and lesbians. The underlying assumptions of these kinds of arguments are that gays can't be as good parents as heterosexuals (false and animus-related), or that marriage is so much about procreation that allowing non-procreative couples to marry would or could hurt the institution. No reasonable person can look at the current laws surrounding marriage in any state of the country and come away with the notion that procreation is the central feature of marriage. No heterosexual couple is ever asked by any government official anywhere, anyplace whether they want children or plan on ever having children.
Judge Posner has persuasively demonstrated that there is no connection between the welfare of children or marriage and bans on same sex marriage. Here is a list of unanswerable questions he asked at the oral argument demonstrating the lack of any such connection, and his decision.
I stand with him.