The Bizarre Case Against Gay Marriage

As the Prop 8 case draws to a close in California, lawyers defending the gay marriage ban offer a scary argument: Anyone who isn’t marrying to have kids is out of bounds.

01.29.10 12:10 AM ET

As the Prop 8 case draws to a close in California, lawyers defending the gay- marriage ban offer a scary argument: anyone who isn’t marrying to have kids is out of bounds.

The gay-marriage trial, which just closed in San Francisco, scared me to death. I haven’t been this nervous since reading The Handmaid’s Tale, Margaret Atwood’s fantasy of an America ruled by sexual fundamentalists who took over after a plague of infertility threatened the national survival. The protagonist, the Handmaid, had been a gainfully employed and liberated woman, who married for love and used birth control to separate sex from reproduction. After the revolution she was enslaved as a childbearer in a lifelong intact family belonging to a Commander of the new society, an embodied womb, in her own words. Although it seems a long way from resisting gay marriage to Atwood’s sexual totalitarianism, it turns out resisting gay marriage is just the most visible part of the defendants’ program to enforce through law the ideal of lifelong, reproductive Christian monogamy. It’s not just gay men and lesbians who transgress. Anyone who isn’t marrying in order to procreate and anyone who’s procreating outside of marriage is potentially out of bounds.

The most chilling moment came when gay marriage opponents’ witness David Blankenhorn finished describing how the sexual revolution had already weakened marriage, a relationship designed to channel heterosexual reproduction into a biological family that will take good care of the children sex produces. Selfish, happiness-seeking adults and the resulting divorces and out-of-wedlock childbirths had eaten away at the support for marriage, he continued, a process he calls “deinstitutionalization.” “By the way,” he said, glaring out at the roomful of mostly straight lawyers and media (including this reporter), “it was the heterosexuals who deinstitutionalized marriage. Marriage was weakened long before the movement for same-sex marriage.”

This concept of marriage cast doubt on the unions of the numerous couples who tell pollsters they never get any. Conversely, it also seems to justify marital rape.

You talkin’ to me? Other commentators have noticed that the same-sex marriage opponents’ definition collapsing sex and marriage would make a bunch of straight relationships a little dicey. But once the witnesses and lawyers for the opponents started describing their agenda, things got a lot worse fast. Early on, the defendants’ lawyers revealed that they were only concerned about marriage, because children did better if they were raised in married, two-parent families. Not just any two-parent families, but their biological families. “Intact biological families,” attorney David Thompson reminded the court, were the gold standard the defendants were trying to advance. So any comparison between children raised by same-sex couples and heterosexual offspring is tainted, because the heterosexual control group includes the dreaded adoptive parents. To say nothing of the worst-case scenario: Singles raising children on their own.

The other shoe dropped Wednesday, when Blankenhorn testified that the law could be used to ban or discourage family forms less than ideal for children. After all, he opined, polygamy was banned in part because it was considered bad for children. Following this logic, divorce, too, could be banned, for its role in changing ideal biological intact families into either singles or stepfamilies; adultery could be recriminalized for the role it plays in triggering divorce. Turns out Blankenhorn was part of a study that recommended single mothers give up their babies for adoption—even adoptive families being considered better than single ones. In this vision, the married couple is essentially bound for life by their duties to their children.

In an uncanny echo of the Atwood novel, early in the trial, the defendants’ lawyer David Thompson suggested that deinstitutionalizing marriage was linked to alarmingly low fertility rates. Not surprisingly, then, Blankenhorn resisted any suggestion that there could be marriages that don’t involve sex. (In a wicked coincidence, the judge in the case, Vaughn Walker, had presided over a wedding for two presumably non-reproducing octogenarians right before the trial started.) Even a prisoner who doesn’t get conjugal privileges will “consummate” the marriage “when he gets out,” the witness testified. This concept of marriage cast doubt on the unions of the numerous couples who tell pollsters they never get any. Conversely, it also seems to justify marital rape—a legal doctrine that happily mostly ended when the feminist movement came along. If marriage means sex, how can a wife resist?

Free love; free people. There are many ways that freedom was lost in Atwood’s terrible vision: Abortionists were murdered by ravening crowds in stadiums, and the Handmaids forbidden to read. But the consistent and original theme of the work is that freedom to choose whether and why to have sex is a crucial part of meaningful freedom. The Handmaid only finds liberation when she steals out of her room to bed the chauffeur. Atwood writes a pretty good sex scene, but the freedom in the act is vastly sexier than the sex is.

It’s funny to think that asking to be allowed to marry would serve the interest of sexual freedom. But in revealing the profoundly repressive sexual agenda of the gay marriage opponents, the trial revealed for the 1,000th time how no one’s freedom is safe when anyone’s freedom is in peril.

Linda Hirshman is a retired professor of philosophy. She is the author of Get to Work: A Manifesto for Women of the World. She is writing a book about the gay revolution.