Charles Cooper, the lawyer defending Proposition 8, urged the high court not to refocus “the definition of marriage away from the raising of children and to the emotional needs and desires of adults.” In doing so, he was simply restating the basic sociological observation that the purpose of marriage is to serve the best interests of children in the institution of the family. To put it differently, marriage was not created to make adults happy. Ironically, Maureen Dowd took Cooper to task today, asking, “Did he miss the last few Me Decades?” She just doesn’t get it: it is precisely because he didn’t miss them that he seeks not to sustain them.
Cooper’s adversary, Theodore Olson, shares Dowd’s handicap. He said marriage is a “personal right,” not “society’s right.” If it were a personal right he needs to explain why the Framers, and all the jurists since the 18th century, never discovered it. Also, societies do not possess rights—they have interests. Only individuals have rights.
In his dissent in the 2003 Lawrence v. Texas decision that legalized homosexuality, Justice Antonin Scalia warned that if the laws against homosexuality are to be jettisoned, then there would be no principled basis left to proscribe such things as polygamy and incest. He was widely scorned for saying so. Guess what? Yesterday, Justice Sonia Sotomayor asked Olson if gay marriage is okay, why not polygamy and incest? Without a trace of evidence, he said they involve exploitation and abuse.
Olson needs to meet Allen and Patricia Muth. Brother and sister, they have sought to marry, and they would take great umbrage at the very idea that they are exploited or abused. Ditto for thousands of women in polygamous relationships: they love their husbands and their co-wives. Moreover, Kinsey associate Wardell Pomeroy argued over 40 years ago that incest “can sometimes be beneficial.” In short, the “Me Decades” are on trial.