Breeding injustice

By MICHAEL J. AMICO  |  August 10, 2006

At all costs, eugenicists rallied to preserve the link between marriage, family, and procreation. And the same is true of contemporary gay-marriage opponents. As the 1930s went on, marriage laws piled up: forty-one states prohibited marriage of the insane and feeble-minded, 17 of epileptics, and four of confirmed drunkards. These laws are no different from the Defense of Marriage Acts (DOMAs) of today. They’re all unabashed attempts to preserve the institution of marriage for those who would presumably constitute the “best” environment for the betterment of humanity.

Many other restrictions based on biological “capacity” have flown under the disability-reform radar. Ruth Colker, Heck-Faust Memorial Chair in Constitutional Law at The Ohio State University and nationally recognized expert on disability law, has observed the long-lasting effect of legal “unfitness.” “These exclusions continue today,” Colker says. “Twenty-six states proscribe voting by persons labeled idiotic, insane or non compos mentis. Only ten states permit citizens to vote irrespective of mental disability.” With the advent of same-sex marriage prohibitions, new restrictions rooted in people’s biological “incapacities” have reared their ugly heads once again.

No child left behind
The parallels between eugenics and current marriage prohibitions are most uncanny — and unnerving — when the interests of children and procreation are levied against same-sex marriage advocates. Last month, the usually liberal New York State Court of Appeals even suggested that the New York State legislature might rationally limit marriage between a man and a woman because “it is better […] for children to grow up with both a mother and a father.” The same sentiment in favor of eugenic marriages appeared in Eugenics and Sex Harmony in 1938: “Every child who is born into the world has an inalienable right to be well born” (657). The Court of Appeals also proposed that the New York State legislature could legitimately “offer an inducement — in the form of marriage and its attendants benefits — to opposite-sex couples who make a solemn, long-term commitment to each other.” Yet again, such a social program is eerily reminiscent of a top eugenic priority in a pamphlet disseminated by the Eugenics Record Office in 1927: “To secure such social ideals as will facilitate the mating of the fittest” (249).

The state — taking a page from a history most Americans now consider shameful — is still tying exclusion from marriage to biological “unfitness.” As gay people push for more rights, the state predictably tightens its reigns on marriage. In another recent same-sex marriage defeat, the Washington Supreme Court concluded “that limiting marriage to opposite-sex couples furthers the State’s interests in procreation and encouraging families with a mother and father and children biologically related to both.” Compare that with the words of American eugenicist Charles Davenport, who suggested in 1910, “Society must protect itself; as it claims the right to deprive the murderer of his life so also it may annihilate the hideous serpent of hopelessly vicious protoplasm.”

After 50 years of developments in scientific knowledge, medical experts now dismiss claims for biological “fitness” as pseudo-science. All major medical associations no longer consider homosexuality diseased or a threat to society’s stability. Yet medical evidence was once the main source of support and validation for the disqualifications promulgated by eugenicists. Something’s definitely amiss here.
Gay people are no longer routinely institutionalized or sterilized, but the logic and language of marriage exclusion that grew out of the eugenics mania lives on insidiously. The presumption remains that gay people are “unfit” and that allowing them to marry would destroy and undermine marriage. Marriage is reserved for the best “kind” of person — a logic that is as empty, and ugly, now as it was before. It has gone unchanged and unchecked for 100 years and is now more dangerous to equality under the law than ever thought possible.

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Bloody July: In just one month, six different State Supreme Courts have ruled against gay marriage. By Michael Amico

What is eugenics?
According to the second edition of Webster’s International Dictionary, published in 1934, eugenics is “The science that deals with influences … that improve inborn or hereditary qualities in a series of generations of race or breed, esp. of the human race.” In practice, that meant, among other things, seeking legislation to prohibit the “unfit” from marrying. In 1921, for example, New York State considered “An act to amend the domestic relations law, in relation to the prevention of hereditary blindness” that proposed giving judges power not to certify marriage between the blind if “by reason and the nature of such visual defects the children of such marriage might become blind and thereby be a charge upon the public.”