No babies? No marriage for you

Will proposed restrictions on hetero marriage help open the institution to same-sex couples?

Topics: Broadsheet, Love and Sex,

Here’s … something: An initiative, filed by the Washington Defense of Marriage Alliance, that would require heterosexual couples to have kids within three years of getting married. If they didn’t pop out babies, their marriages would be annulled; if they can’t have babies, for whatever reason, they wouldn’t be allowed to get married in the first place.

Let me take a step back and say that I have been accused in the past of being gullible. In sixth grade, for example, I believed a friend when she told me that instead of just opening the garage door when they needed to get the car out, her family would remove the entire side of the building every time they wanted to go for a drive. (It didn’t quite make sense, but I figured, hey, it was her business. Who was I to judge?) So for a second, I thought that this initiative was just the work of some wacky group of people so opposed to sex that they wanted it to be legally limited to potential childbearing situations. I mean, this is America. Crazy stuff happens.

But actually — and, I think, thankfully — the Washington Defense of Marriage Alliance was formed to try to promote marriage equality for everyone, whether he or she be gay, straight and/or infertile. The group formed in response to Washington’s state Supreme Court’s decision last summer, in Andersen v. King County, to uphold the provisions in the state’s 1998 Defense of Marriage Act (DOMA) that limit marriage to unions between a man and a woman and ban same-sex marriage. The court’s opinion wasn’t anti-same-sex marriage on principle, though. “In reaching this conclusion, we have engaged in an exhaustive constitutional inquiry and have deferred to the legislative branch as required by our tri-partite form of government,” the justices wrote. Then they added this encouragement: “We see no reason, however, why the legislature or the people acting through the initiative process would be foreclosed from extending the right to marry to gay and lesbian couples in Washington.”

Most people’s response would probably be to try to get an initiative on the books that would grant the right of marriage to same-sex couples. Not the Washington Defense of Marriage Alliance, though. Instead, its creators decided to go toward the other direction: the absurd. Here’s how the alliance explains its plan:



“The way we are challenging Andersen is unusual: using the initiative, we are working to put the Court’s ruling into law. We will do this through three initiatives. The first would make procreation a requirement for legal marriage. The second would prohibit divorce or legal separation when there are children. The third would make the act of having a child together the legal equivalent of a marriage ceremony.

“Absurd? Very. But there is a rational basis for this absurdity. By floating the initiatives, we hope to prompt discussion about the many misguided assumptions which make up the Andersen ruling. By getting the initiatives passed, we hope the Supreme Court will strike them down as unconstitutional and thus weaken Andersen itself. And at the very least, it should be good fun to see the social conservatives who have long screamed that marriage exists for the sole purpose of procreation be forced to choke on their own rhetoric.”

I’d be interested in hearing the justices’ opinion on this plan — after all, they explicitly noted that they wrote their decision on a constitutional, not moral, basis. As they put it, “It is important to note that the court’s role is limited to determining the constitutionality of DOMA and that our decision is not based on an independent determination of what we believe the law should be.”

And even the part of the decision that the Washington Defense of Marriage Alliance is fixating on is hardly a condemnation of gay rights:

“Although times are changing, the plaintiffs have not established that as of today sexual orientation is a suspect classification or that a person has a fundamental right to a same-sex marriage. Thus, the State is required to demonstrate only a rational basis to justify the legislation. Under this highly deferential standard, any conceivable state of facts providing a rational basis for the classification may be considered. The legislature was entitled to believe that limiting marriage to opposite-sex couples furthers the State’s legitimate interests in procreation and the well-being of children.”

If you look at the decision creatively, as the Defense of Marriage Alliance certainly is doing, the court’s opinion almost invites people to challenge it. Will the alliance’s plan work? Who knows. To have a chance, it’s shooting to get 280,000 people to sign on to the joke.

Catherine Price is a freelance journalist and author of "101 Places Not to See Before You Die". She also runs a legally themed clothing shop called Illegal Briefs.

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