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View Diary: Marriage is meant to protect society from the threat of Bristol Palin's out-of-wedlock baby (129 comments)

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  •  Good lord, this is a staggeringly stupid (0+ / 0-)

    legal argument. I don't know if it's as creepy as this (follow-up here), where the argument was basically:

    1. Straight couples' capacity to procreate makes them "unique" and "special";

    2. procreation is a valuable service to the state;

    3. therefore straight couples are entitled to "special benefits" and "special reward" from the government, in the form of exclusive access to marriage, which

    4. also functions as "compensation" for straight couples' taking on most of the burden, on behalf of and in service to the state, of childbirthing and parenting.

    Got that? We should "reward" and "compensate" breeders for being breeders (irrespective of whether they actually can or do breed), by making "marriage" exclusively for them.

    Ugh.

    Clement's argument is less creepy but a darned sight stupider. What I think it has in common with the argument above is that they both speak more to the benefits and purposes of having the institution of marriage in the first place, without bearing on exclusivity. In the original conversation with the person mentioned above, every time (s)he brought up some positive thing about marriage, particularly relating to procreation, I had to remind him/her that it would continue unabated whether same-sex couples can marry or not.

    The problem, as many readers here probably understand, is that there really is no logical, reasonable, coherent, plausible argument to be made on behalf of exclusivity. Once the issue is properly framed as exclusivity vs. equality (as opposed to gay vs. straight, marriage vs. non-marriage, religious vs. secular, state vs. federal, etc.), it's impossible to argue for exclusivity in a way that does not ultimately boil down to either subjective feelings about religious morality or anti-gay bigotry. (Or both.) The only reason to have exclusivity instead of equality is because equality offends some people's feelings. But that's not a legal argument and it would certainly not survive even rational-basis scrutiny, let alone heightened or strict scrutiny.

    I don't envy Mr. Clement having to make what is really an impossible argument. It's just a shame that he had to come up with something this stupid.

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