A lot of people are laughing at how Justice Elena Kagan made the lawyer defending Prop 8, Charles J. Cooper, look foolish yesterday by summoning an imaginary couple over 55 years of age to make the point that the state doesn’t deny marriage licenses to people who can’t procreate. In her scenario, the woman is certainly menopausal or post-menopausal by that age, so it doesn’t matter that the man could conceive a child. The couple couldn’t. Kagan was actually interjecting into a conversation between Cooper and Justice Breyer (full transcript, page 22). The issue was whether or not it is true that the State’s interest in marriage is bound up with procreation. Cooper argued that it was. Breyer wanted to know why, then, we allow people who can’t procreate to get married. Cooper made an effort to explain his reasoning, but it was difficult because Kagan cut him off and then basically mocked his argument. Here was his response to Justice Breyer that set off his confrontation with Kagan.

COOPER: The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples.

The key here is that Cooper is taking this out of the area of individual rights to make a sociological argument. What he’s saying is not that if we we let Bill and Ted get married, their marriage will infringe on someone else’s rights or cause some other couple to get divorced. But he’s saying that over time there will be a cumulative effect to genderless marriage because it will make it about the adults’ happiness instead of the State’s interest in bolstering two-parent parenting.

In this scenario, the opposite-sex marriage of a couple that can’t have children doesn’t have the same affect, even though that kind of marriage is pretty clearly all about the adults’ happiness, and unrelated to the State’s interest in procreation. It was this seeming hypocrisy that Kagan seized on and mocked. Amongst laughter in the Court, Cooper made one more brief effort to explain his position before Justice Scalia cut him off and sent the conversation in another direction.

COOPER: Your Honor, society’s interest in responsible procreation isn’t just with respect to the procreative capacities of the couple itself. The marital norm, which imposes the obligations of fidelity and monogamy, Your Honor, advances the interests in responsible procreation by making it more likely that neither party, including the fertile party to that —

And after much back and forth, he finally concluded:

COOPER: It’s designed, Your Honor, to make it less likely that either party to that marriage will engage in irresponsible procreative conduct outside of that marriage. That’s the marital norm. Society has an interest in seeing a 55-year-old couple that is — just as it has an interest of seeing any heterosexual couple that intends to engage in a prolonged period of cohabitation, to reserve that until they have made a marital commitment. So that, should that union produce any offspring, it would be more likely that that child or children will be raised by the mother and father who brought them into the world.

Let me try to construct a more coherent argument here. Cooper is saying that marriage serves to discourage sexual behavior out of wedlock, which is in the State’s interest because children born out of wedlock create societal problems, including costs to the State. For this reason, it’s important that people see marriage as an institution that is a prerequisite to both having sexual relations and to planning a family. Once we concede that marriage is really nothing more than an agreement between consenting adults to make a commitment to each other in the pursuit of their own happiness, then the sociological purpose and benefit of marriage (from the State’s point of view) disappears completely.

In the case of the couple who are both over 55 years of age, and therefore cannot have children together, the state’s interest in their marriage is that it discourages the man, who can procreate, from procreating outside of his marriage. I think we can concede the point here that the over-55 couple is not identically situated to two men or two women. But it’s hard to even find the distinction. After all, a gay marriage could act to discourage people from having extramarital heterosexual relationships that might result in procreation. That the gay couple cannot procreate together is no different from the over-55 heterosexual scenario where the man could still father a child with another, younger, woman.

So, the question, then, is whether or not genderless marriage will tend to reduce the occurrence of marriage over time. Will it result in more out-of-wedlock heterosexual behavior and more single-parent households? Will people get the idea that marriage is unrelated to procreation and choose to get married only and solely for their own happiness and not because that is the appropriate thing to do if you are going to engage in behavior that could result in a child?

Conservatives on the Court seemed sympathetic to the view that this might be a result and questioned whether or not we ought to wait until more sociological data is available to settle the question.

As a political and cultural matter, Americans seem to have already been sold on the idea that marriage is really about the happiness of the adults and not a prerequisite for sexual relations. In this sense, this argument seems like a rearguard action for extreme social conservatives. And, as a legal matter, I don’t know that you can treat people’s individual due process and equal treatment rights as a sociological question. But culture and the law aside, the institution of marriage has been encouraged over centuries as a way to make men take responsibility for their offspring and to thereby reduce the costs to society as a whole. In the past, this marriage requirement has been very coercive and not much concerned with the happiness of the adults. As marriage has become optional, and something you can enter and leave at will, it has become less effective in its original purpose.

There’s plenty to debate here. For example, there was always a societal cost to unhappy marriages. Now that many fewer people are coerced into marriages and it is much easier to terminate unhappy marriages, those societal costs have gone down dramatically. Now that we’ve developed family courts and an efficient means to compel fathers to meet their responsibilities to their children, our interest in keeping unhappy families together is virtually erased. In many cases, the State’s interest in protecting a woman and her children from an abusive husband exceeds their interest in keeping whole the family unit.

Coercive marriage was always a blunt instrument, usually backed by religious imperatives, aimed at creating a greater societal good. Eventually, it became clear that the institution had to be relaxed to better protect other societal goods, including individual rights and the right to the pursuit of happiness. So, I think Cooper’s argument fails on any number of levels, but I don’t think he necessarily deserved to be laughed out of Court.

In a sense, the recognition of gay marriage really does represent a formal acknowledgement that our society is rejecting the original societal interest in marriage. It’s significant, but it only formalizes something we have already decided for ourselves in opposite-sex marriages. We get married because we love each other and because we want to get married, not because we feel we must if we want to have sex or children.