On SSM, Professor Araujo v. Professor Tribe


Prof. John Araujo, SJ at the Loyola University School of Law in Mirror of Justice:

Professor Tribe also makes passionate arguments [in his SCOTUSblog symposium contribution] for the “constitutional inevitability of same-sex marriage,” and some of them are based on polls, evolving consensus, and the transformation of culture. In this context, he asserts that arguments contrary to his on these points necessitate “the Court to cut this baby in half.” I wonder if he would employ this phrase in the arguments he has made in defense of abortion (for there, the baby—millions of them—has been and is plainly cut in half)? He also derides the use arguments against same-sex marriage that rely on what he labels “pseudo-scientific claims.”

He does not identify the reasoning underlying these claims, but I wonder how he would consider this argument: Let us assume that two planets which have not yet been inhabited by humans are to be colonized by them; on Planet Alpha, heterosexual couples only are assigned; on Planet Beta, only homosexual couples. In one hundred years, will both islands be populated assuming that reproductive technologies are not available to either group? I suggest that Planet Alpha will be; but Planet Beta will not. Why? The basic answer is to be found in the biological complementarity of the heterosexual couple necessary for procreation that is absent in same-sex couple. This is a scientific argument, but perhaps it is, in Tribe’s estimation, counterfeit.