Earlier this week, Richard Epstein wrote about “The Strange Alliances Around the Gay Marriage Cases” in which he favorably quoted Jeffrey Toobin writing in the New Yorker. Epstein said Toobin “rightly notes that Justice Scalia’s dissent in Lawrence should be the blueprint for the new Kennedy majority opinion.”
That dissent, widely derided at the time as hyperbolic, said that the majority decision would undermine marriage law. Now that hyperbolic dissent should be “the blueprint” for ruling in favor of same-sex marriage.
I sometimes have occasion to do research of magazines and newspapers from decades past and this is a pattern. Conservatives issue a slippery slope warning. Cultural elites mock it. Then after an appropriate number of years pass, they acknowledge that the Scalias of the world were exactly right.
All this to say that I was reading the New Yorker article in question today while going through physical therapy. And I nearly had a heart attack when I read the remainder of Toobin’s little Talk of the Town piece.
He says, as is the trend among the supposedly well-read but surprisingly ignorant elites these days, that the only basis for defining marriage as a union built on sexual complementarity is “tradition and bigotry.” He notes that Paul Clement’s arguments in favor of DOMA deal with the “intrinsic connection between marriage and children.” Toobin brings up the fact that some married people do not have children and that therefore “the argument is not likely to be a winning one.”
So he has come up with this: “The link between procreation and marriage itself reflects a unique social difficulty with opposite-sex couples — namely, the undeniable and distinct tendency of opposite-sex relationships to produce unplanned and unintended pregnancies.” Even after repeated readings, the sentence is baffling. Donald B. Verrilli, Jr., the current Solicitor General, understated matters by saying that justifications like that one for “the institution of marriage would hardly be recognizable to most of its participants.”
I read that and nearly shouted.
How could Jeffrey Toobin, of all people, deny that males and females joined as one flesh produce unplanned and unintended pregnancies? How could he find that acknowledgement about heterosexual sex “baffling?”
This is the man who, according to news reports at the time, tried to get the woman he cheated on his wife with to have an abortion when she got pregnant:
In 2008, when Greenfield became pregnant, and when she told Toobin the news, he offered her “money if she’d have an abortion,” says a source. He also allegedly offered to pay for her to have another child later via a sperm donor.
“When Casey wouldn’t have an abortion, Jeff told her she was going to regret it, that she shouldn’t expect any help from him,” claims another source.
If anyone should know about “the undeniable and distinct tendency of opposite-sex relationships to produce unplanned and unintended pregnancies” I would think it would be Jeffrey Toobin.
His confusion about the walls all societies across all time and place have put around this distinct feature of heterosexual sex is, perhaps, not surprising given his reported treatment of his wife, his mistress and at least one of his children, but it is appalling that someone with this confusion should be calling those who understand it “bigots.”
Word to the wise. If you find yourself in bed with this guy either legally or romantically, I’d recommend finding another sleeping partner.