Jacob Levy continues to sift through his email box, looking at rationalizations for anti-gay discrimination in marriage laws.

The most popular rationalization is that a gay or lesbian couple is incapable of biological reproduction. But, of course, so are many straight couples, voluntarily or involuntarily. And many couples, although physically capable of reproducing, have chosen not to reproduce. [Obligatory disclosure: my wife and I are among the latter group.] We do not deny marriage licenses to these couples.

Several of Jacob’s readers have espoused the position that we should, indeed, deny non-procreative couples the right to marry. An unnamed, “conservative, married” correspondent writes to Jacob:

I’d suggest that only marriages WITH children get extraordinary “protection”. You can call you partner and your arrangement whatever you want but the state should only recognize existing FAMILIES and partners who have reared children as state blessed “marriages” with accompaning rights and benefits.

So, if you’re sterile and marry and don’t have kids…no bene’s. If you adopt, fine, you got a “marriage” in the states eyes and get benes. Until then, call your arrangement whatever you’d like but make all of your legal issues explicit (wills, visitation, powers of attorney) cause the state doesn’t (and shouldn’t) care about helping two, unburdened, free, adults square away their respective responsibilities to each other.

Jacob is mainly interested in the legal question of whether a right to marry would be guaranteed for these couples by the U.S. Constitution (presumably by the Ninth Amendment and the “Privileges and Immunities” clause of the fourteenth). But the public policy position, or the philosophical position, that marriage ought to be reserved for (potential or actual) biological parents is independant of that, and, barring an actual court case, seems more interesting to a non-lawyer such as me.

This political/philosophical position needs a name. Since the position could be summed up succinctly as “Marriage is for breeders”, I propose calling this position “breederism.”

As Brock notes below, the gay marriage debate has spawned some odd threads, including a discussion of the constitutionality of non-procreative marriage by Jacob Levy. While, in general, I’m not particularly interested in this debate*, I think there are a couple of plausible interpretations of the constitutionality of marriage:

• A textualist argument would say the Constitution has nothing to say on the issue, either way; marriage is not explicitly mentioned in the Constitution. Pure strict constructionalism would argue that this gives Congress no right to legislate on marriage, as that is not an enumerated power of Congress. An expansive reading of the “necessary and proper” clause would argue that Congress can regulate marriage, at least between residents of different states (under the interstate commerce clause), or in all circumstances, as marriage may be part of the “general welfare.” Neither interpretation seems to suggest that marriage would be a constitutional right, though.
• An originalist argument would say that the Constitution is only construed to protect marriages that were permitted under English common law at the time of independence (under the meaning of “liberty” at the time). This would probably limit constitutionally protected marriage to marriages involving one man and one woman, within a single race, and instituted by a religious ceremony of some form. Clearly, an originalist argument would no longer be supported by precedent, as interracial marriage is constitutionally protected (see Loving v. Virginia) and so, presumably, are civil marriages.
• An argument based on the majority holding in Lawrence v. Texas would probably consider marriage as a constitutionally protected “liberty interest” absent a compelling state interest to the contrary. This would place the burden on the state to show there is an overwhelming interest that isn’t based on prejudice against gay marriage, something that I think would be very hard to show.

There’s also a second argument surrounding gay marriage: whether the “full faith and credit” clause requires states where certain marriages are not constitutionally protected to acknowledge those marriages if they were conducted under the laws of another state (say, Massachussetts). Absent a clear textual command to the contrary, I, like Matt Stinson, suspect you could find at least some state or federal courts that would say “yes,” although I don’t think the U.S. Supreme Court would eventually concur. However, some state supreme courts probably would.

What worries me is that, like abortion, this will become one of those interminable debates that paralyzes the judiciary—and by extension, politics at large—because the Supreme Court takes sides too soon in the wider political debate. The last thing this country needs is another “culture war” where the Supreme Court has essentially placed a highly controversial issue beyond ordinary politics. It’s the sort of thing that leads to both parties taking absurdly extreme positions and is ripe fodder for demagoguery by the likes of Roy Moore and the Buchananites.

John Sides ponders psychological explanations for the alleged murderer/assassin of George Tiller’s behavior, noting recent research on the motivations of extremists:

Is there some salient new “threat” that would have heightened Roeder’s concern about Tiller? Lots of research suggests that threat is a crucial motivator of violence. ... However, I’m not sure what the threat is in the case of [alleged assassin] and Tiller. Some have suggested that Bill O’Reilly’s criticism of Tiller is to blame.

I’ll freely admit that if I owned a commercial television network I wouldn’t give Bill O’Reilly a platform to express his views (as, for that matter, I’d cancel any programming that featured latter-day Know Nothing nativist Lou Dobbs or someone who spends most of his program, as far as I can tell, whining about the guy who kicks his ass in the ratings in the same timeslot—namely, Keith Olbermann).* Sides goes on to explain this theory is lacking too, in any event.

There is a reasonably plausible threat hypothesis, however; for the first time in eight years, there is a Democratic, pro-choice president in the White House who just happens to have nominated a left-leaning, presumably (if we are to believe the White House’s spin machine) pro-choice candidate to a vacancy on the Supreme Court, which is where (for better or worse) our political system has decided abortion policy is to be decided. I’d imagine if you’re just a wee bit crazy to begin with that might activate the super-crazy neurons a bit, even if it’s just related to hearing people on the news yammer on about the nomination “reigniting” the abortion debate.

Then again, maybe his dog told him to do it.

* Clearly my network would go out of business for lacking viewership, but nobody ever believed I had much television programming acumen anyway.