March 18, 2005

Gay Marriage Judicial Activism II

Evan Kirchhoff comments on the recent San Francisco ruling that conventional marriage fails both strict scrutiny and a rational basis test. Kirchhoff doesn't much get into the rational basis bit and that's a shame but he also misses the big elephant in the room. Procreation promotion law, if it ever is to also respect privacy in the least, must be general. That is to say, you must advocate procreation statistically over the entire population in order to respect privacy individually.

Procreation, of the type that is most likely to produce productive citizens, is procreation within a heterosexual marriage without divorce. Individually your mileage may vary but statistically that's just the way things are. Rationally, if you're going to tilt the society away from demographic collapse, you'd want to promote the procreative method that's most effective in producing healthy, normal individuals. There's your rational basis, assuming that it's constitutional to tilt the playing field in favor of procreation. If not, the Constitution may very well be a suicide pact, at least a demographic suicide pact.

Moving onto strict scrutiny, if gender classification is to be subject to strict scrutiny in the manner done by this judge, single sex public bathrooms have a limited lease on life. Women are denied the right to go into the men's bathroom and vice versa because of the wish that some territory be exclusive to one sex or the other. The two bathrooms are constructed differently just as marriage law is constructed differently for men and women. It is possible to create bathrooms that can be used by both sexes as residence bathrooms are used by both sexes. Certainly single sex public restrooms are not survivable if this judge's reasoning is taken seriously.

At a certain point, judicial imposition overwhelms tolerance. We simply do not want to get to that point because the blowback will be severe, most likely eviscerating judicial power at a start and then moving on to even less happy results. When you reasoning leads to regularly putting women into bathrooms where men go in as well, you've exceeded that level with me, and I suspect the vast majority of the population as well.

If we could ever get around the demographic suicide bit, I could see how it would be an eventual libertarian goal to get rid of natality promotion but it would be far behind the urgent priorities of getting rid of all the government programs that rely on natality promotion in the first place starting with Social Security, Medicare, and all the rest of the "finance the future" ideas that don't make sense if your population is going to shrink. But we haven't gotten around the demographic suicide bit and the EU states are going to be showing us in the next few decades how bad it can get when you do go down the demographic suicide rabbit hole. I don't particularly want to follow them.

Posted by TMLutas at March 18, 2005 01:31 PM