Lost in the histrionics surrounding yesterday’s Supreme Court hearing on same sex marriages was a silly, politically correct underpinning in a hypothetical posed by Justice Kagan to Charles Cooper, the lawyer defending Proposition 8.

Mr Cooper offered the risible argument that the “that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes.”  This prompted Justice Kagan to ask the following:

“Well, suppose a State said, Mr. Cooper, . . . that, because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55.  Would that be constitutional?”

Mr Cooper had no comprehensible answer to this question, although that may have been merely attributable to his not having thought through the issue sufficiently to prepare a response.

The offensive part of the Justice’s hypothetical, however, was in its supposition that both parties be over 55.  Such a statute would constitute invidious discrimination against men, because whereas women are infertile after age 55 (Abraham’s wife Sarah, who allegedly conceived at age 80 notwithstanding), a man can sire a child at any age so long as he can rise to the occasion.

Justice Kagan’s postulating a statute that treats both sexes as the same probably derives from an ideological political correctness.  Yet it is premised upon distinctions that are clearly unconstitutional for reasons wholly unrelated to the issues involved in California’s gay marriage ban.  As noted by James Taranto in the March 27, 2013 Wall Street Journal,

“A law treating 55-year-old men and women as if both were equally infertile would be based on an obviously false premise and hence would lack a rational basis. But a law distinguishing between them would amount to discrimination on the basis of sex.”

While I believe that the good justice intended no slight and was focused on other considerations, her ideology, and the foolish barring of any considerations admitting of differences based on sex requires her to operate within a reality that does not exist.  The resultant will be the creation of rules that deny the extraordinary and different talents, proclivities and needs that each sex possesses.

But perhaps worse was that such ideology obscures a far more profound challenge that could have been posed to Mr Cooper:  Where is it written that marriage primarily addresses procreation?  I thought that it was about building dedicated, cohesive a family unit and, among other things, to foster the security and growth of the next generation.  With respect to this latter purpose, would not any child be better off being raised within a strong family environment, irrespective of the sexual preferences of the parents?  With respect to the former purpose, procreation is not even an issue.

I find myself troubled that the Newthink of political correctness that is becoming more and more entrenched in our political debates is now infecting judicial thinking as well.  But I suppose that I should not be surprised.
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