Procreation is the Sole Purpose of Marriage? Yeah, Right.

A funny exchange happened today on twitter between Rob Tisinai and a guy with the handle SoCalCMH. It started with Tisinai’s response to a Ryan T. Anderson tweet, and was going down the normal tortured path of every gay marriage argument, until Tisinai pulled out one of my favorite legal facts:

 

 

SoCalCMH didn’t believe it:

 

 

Tisinai explained:

 

 

SoCalCMH tried to seize on the fact that these laws only apply to first cousins:

 

 

Tisinai rightly pointed out that that’s irrelevant, since the argument is that marriage is for procreation:

 

 

SoCalCMH didn’t get that, but anyway still didn’t believe that these laws exist:

 

 

 

 

Of course, Tisinai was telling the truth, and he came back with two, Statute 750 ILCS 5/212in Illinois and Arizona Revised Statute 25-101.

Here’s the Arizona law. Pay attention to paragraph B:

25-101. Void and prohibited marriages

A. Marriage between parents and children, including grandparents and grandchildren of every degree, between brothers and sisters of the one-half as well as the whole blood, and between uncles and nieces, aunts and nephews and between first cousins, is prohibited and void.

B. Notwithstanding subsection A, first cousins may marry if both are sixty-five years of age or older or if one or both first cousins are under sixty-five years of age, upon approval of any superior court judge in the state if proof has been presented to the judge that one of the cousins is unable to reproduce.

C. Marriage between persons of the same sex is void and prohibited.

It’s pretty straightforward. Paragraph B says that first cousins can only get married if they’re past child-bearing age or (get this!) if they get a doctor’s note saying one of them is infertile. Yeah, a doctor’s note. The law in Illinois is identical, except the cutoff age is 50 there instead of 65.

There are more, too: Utah and Wisconsin have similar laws and, in Indiana, first cousins over 65 (and thus presumed past child-bearing age) are allowed to marry.

Now, put aside for a second how you feel about cousins marrying. :/ These laws really do give away the game. If we truly believed that marriage is about procreation, we wouldn’t have laws that say certain couples can get married so long as they *can’t* procreate.

But these laws do exist, because when we’re being honest, we all recognize that marriage is good for reasons that go beyond procreation. However you feel about cousin marriage.

Anyway, I would love to hear an opponent of gay marriage try to reconcile paragraph C in that Arizona statute (“Marriage between persons of the same sex is void and prohibited”) with paragraph B. Because you just know the justification for paragraph C has something to do with marriage being ordered toward procreation.

 

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