WHY DON'T POST-MENOPAUSAL WOMEN DO THE SAME THING?: Maggie Gallagher replies to Jonathan Rauch

Jon, thanks. I know how frustrating it can be when people mutely refuse to enter a key point of the debate. So I will respond directly to your question, "What about the risks of NOT doing SSM?", in the next post.

So why don't older women marrying interfere with marriage's role in managing procreation in the same way that same-sex couples would? (I'm concentrating on these as the hard cases--since "infertile couples" are not really an identifiable class and many infertile couples do have children, even without reproductive technology. You don't know which couples won't have children until they've tried for quite a few years).

Well, the first thing to notice is that they don't. That is, throughout all the approximately 200 centuries in which clergy, civil leaders, artists (e.g. Shakespeare--"The world must be peopled!"), intellectuals, and ordinary people affirmed that marriage is centrally "about" managing procreation in some way, older people were allowed to marry. And infertility in our legal and cultural tradition (unlike some others--as in many parts of Africa where the child is the consummation of a marriage) never legally invalidated a marriage. (Although it remains the case law in at least some U.S. jurisdictions, that marrying with the willful intent not to have ANY children with your spouse gives that spouse grounds for annulment, as a species of fraud.)

Think about it: For roughly 2000 years, pretty much no one ever thought of saying that because we let older women marry, and because some married couples don't have children, marriage is not really about childbearing, it is primarily about adult relationships.

It is only in the context of the SSM debate that people (gay marriage advocates) began to argue, and judges began to rule, that because older women can legally marry, marriage is not about procreation. Or, as Andrew put it, "non-procreative companionate marriage" is "the civil norm." (He still won't tell me what a civil norm is but. . .)

What's the difference?

In the first place, allowing older women to marry still obeys the first rule (or internal logic) of marriage: if these people have children, it's not a social concern. They don't visibly contradict the public purposes in the same way that asserting that two men are just the same as a husband and wife. Also, practically speaking any man who marries an older woman is not going to be producing fatherless children across multiple households (presuming he lives up to his vow). So in that limited sense their marriage serves the public purposes of marriage.

Secondly, older couples and childless couples are all part of the normal lifecycle of marriage in our tradition. Married couples start up childless (ideally) and end up old and infertile together (ideally). So the presence of these couples in the pool of marriages does not carry any powerful social signal at all.

Same-sex marriage, on the other hand, is part of a dynamic cultural movement to affirm the equality of same-sex and opposite sex couples ("marriage equality"). There is every reason to believe that this cultural movement, if successful, will succeed; the law will become an instrument exerting social pressure on marriage traditionalists to make sure it does succeed (cf my last post). To assert that there are no important differences, legally or socially, between same and opposite-sex couples IS to assert that the fact that only opposite-sex couples can a. create new life and b. connect that new babies to the man and woman who made them, is not a very important difference, legally, socially, and morally.

That's the difference.

posted by Eve at 4:59 AM VOTE

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