Natural Law: Under Control of Fertility

Sarah Posner covers the debate between Andrew Sullivan and Maggie Gallagher over marriage equality. It kind of makes me wonder why I didn’t go to see it.

Gallagher is insistent upon the primacy of natural law; that God’s intent for marriage was for procreation and absent that possibility, marriage isn’t marriage. (She offered an exemption for infertility, something about which she has previously written, unconvincingly.)

Does it make me a Nasty Gnu Atheist to point out that using “natural law” as a basis for “marriage” is really quite silly? It does, doesn’t it? But really, marriage is not a natural process. Sex is a natural process. Procreation is a natural process. Marriage is an institution that human beings created. We’ve changed the rules a lot over the millennia—overwhelmingly for the better, might I add—and we may continue to do so. One could just as easily argue that monogamy isn’t the most natural of arrangements, either. We didn’t evolve to pair off into neat little dyads and live happily ever after forsaking all others, but that doesn’t mean it isn’t a model worth pursuing.

Second, Posner raises the question of why Gallagher offers an exemption for infertile couples, if marriage is all about baby-making. Gallagher hasn’t actually answered this question—go ahead and follow the link to her NOMblog entry, it’s completely nonsensical—but I have answered it before. Marriage-for-babies isn’t about the couple, it’s about the society. If a society really wanted to make sure every married couple produced children, it would insist on all brides getting pregnant before marriage, and there are some cultures that do this. That way, any woman who was unable to get pregnant wouldn’t have any marriage prospects, and any man unable to make a woman pregnant would either be unable to find a bride, or he’d end up raising other men’s offspring (which is not what he would have in mind). All couples would have at least one kid apiece, and most infertile individuals (all women, most men) would remain single. What we do is we encourage heterosexual couples to get married before attempting to establish pregnancy, and we assume that they will be successful in baby-making. Since we don’t test people for fertility before issuing marriage licenses, any given pre-menopausal marriage is one that could result in babies. This isn’t really about birthrate so much as about sending a message to the sexually active populace. When you become an adult, you get married, and when you’re married, you have kids. The fact that some people slip into this system while unable to make the babies happen doesn’t detract from the message; if anything, it reinforces the narrative that your fertility is not yours to control. New marriages of post-menopausal couples, also, are acceptable under this model. We all know they won’t have kids now—they’re not supposed to. They could have had children earlier, with other spouses. Every neat little man-woman dyad contributes to the larger picture, which reinforces the supremacy of the nuclear family. Older couples pursuing new marriages helps remind younger people that marriage is what everyone is supposed to do.

Problem is, those rules are not as hard and fast as they used to be. We’re a country full of never-married parents, divorced parents, and couples who get married but choose not to have kids. Premarital sex is ubiquitous, birth control is overwhelmingly popular, and fertility treatment becomes ever more advanced. We have doctors who can help women have babies well into their fifties. We have sperm banks, egg donation, and gestational surrogacy. We don’t all need to make sure we get married young so that our children won’t be illegitimate. We don’t need to hurry up and have kids “before it’s too late.” We don’t need cross-sex spouses to give us the children we want, and there’s more and more room in our culture for those of us who simply don’t want children at all. NOM’s vision of marriage is well past its expiration date. We don’t live in that world anymore.