Opponents of marriage equality have long argued that reserving marriage for opposite-sex couples is important for promoting “responsible procreation” in society. Indeed, those fighting to maintain Nevada and Hawaii’s bans on same-sex marriage are again using the argument in conjunction with claims that same-sex couples makes inferior parents. A number of briefs filed with the Ninth Circuit last week help elucidate not only how the “responsible procreation” argument is flawed, but also how it’s actually used to sugarcoat prejudice against homosexuality.
Understanding The “Responsible Procreation” Argument
When conservatives claim that banning same-sex marriage promotes “responsible procreation,” it can actually mean several different things, depending on the context. Here are a few examples.
Sometimes, the line simply reinforces the assumption that different-sex couples make superior parents to same-sex couples, thus it would be “responsible” to limit family recognition to such couples. This argument was used by House Republicans to pass and then defend the federal Defense of Marriage Act.
Another permutation suggests that marriage law is designed to manipulate opposite-sex couples by incentivizing them to marry should they get pregnant — intentionally or accidentally — so that the state does is not burdened with raising the child. As Utah is arguing to defend its ban on marriage equality, only different-sex couples can procreate, so only they need marriage to ensure the state does not have to care for their children. Michigan has been more explicit about this intention, claiming in its defense that it’s important to “regulate sexual relationships between men and women so that the unique procreative capacity of such relationships benefits rather than harms society.” This is essentially the variation put forth in the Nevada and Hawaii cases: if same-sex couples are allowed to marry, then different-sex couples will have more children out of wedlock.
When conservatives are confronted with the counterpoint that infertile opposite-sex couples are still allowed to marry, they rely on one other particularly strange variation of the “responsible procreation” claim. Even if a heterosexual couple cannot (or can no longer) conceive, marriage still somehow discourages them from cheating on one another. As the proponents of California’s Proposition 8 argued to the U.S. Supreme Court, marriage “decreases the likelihood that a fertile spouse will engage in sexual activity with a third party.” Or, as the Family Research Council put it, “‘Responsible procreation’ also implies an effort to discourage irresponsible procreation — a quite plausible example of which might be a 55-year-old man going around impregnating fertile women (presumably younger than himself) who are not his wife.”
In all variations, the underlying assumption is that the ability to provide both a sperm and an egg makes different-sex couples unique, and thus uniquely deserving of the privilege of marriage.
Counterpoint 1: Marriage Does Not Require Fertility
One of the briefs filed in the Nevada and Hawaii marriage cases comes from a group of states that offer marriage equality or some form of same-sex partner recognition (Massachusetts, California, Connecticut, Delaware, the District of Columbia, Illinois, Iowa, Maine, Maryland, New Hampshire, New Mexico, New York, Oregon, Vermont, and Washington). They point out that, among opposite-sex couples, marriage is not limited by law to those who can procreate, nor is it denied to those who are irresponsible in the care of their children:
While states have long allowed parties to void marriages where one spouse is physically incapable of intercourse, the inability to produce children has not itself been a grounds for annulment. Similarly, some states expressly presume infertility after a certain age for purposes of allocating property, but do not presume that these individuals are not qualified to marry. Individuals who are not free to procreate (prisoners, for example) still have the right to marry. Even parents who are “irresponsible” about their obligations to their children have the right to marry.
Counterpoint 2: Same-Sex Couples Have Children
In another brief, the American Civil Liberties Union Foundations of Nevada and Hawaii highlight the reality that same-sex couples have children, so if children are the motive behind promoting “responsible procreation,” excluding same-sex couples makes no sense:
If, as described by both district courts, the end goal of responsible procreation is to increase stability for children through the state’s official recognition and protection of enduring family units, then it is simply wrong to conclude that a state’s interest in responsible procreation somehow does not apply to gay people. Lesbian and gay couples have children through assisted reproduction and through adoption, and the government has just as strong an interest in encouraging such procreation and child-rearing take place in the stable context of marriage.
As federal judge Harry Pregerson similarly wrote in critique of Oregon’s ban on same-sex marriage, “procreation” does not just have to mean heterosexual intercourse:
Same-sex couples can and do procreate — through adoptions, surrogates, and artificial insemination. Denying same-sex couples the status of marriage will not discourage their procreation. Instead, it will lead to children being born out of wedlock to these couples. Thus, excluding same-sex couples from the institution of marriage is not rationally related to the promotion of responsible procreation.
Counterpoint 3: Banning Same-Sex Marriage Harms Those Children
A group of over 50 family law scholars also filed a brief, in which they warn that not only do same-sex couples have children, but depriving those families of marriage actually harms those children:
The marriage ban directly harms a group of children — the children of same-sex couples — by denying their families access to critical tangible federal marital benefits as well as to some state benefits that are conducive to providing stable and secure environments for the raising of children. In addition, Nevada’s marriage ban marks the families of these children as being less worthy of respect and support than families headed by different-sex couples. In this way, the marriage ban does significant tangible and intangible harm to the interests of children born to, adopted by, and raised in families headed by couples of the same sex.
The Bottom Line: The Anti-Gay Prejudice Inherent Behind “Responsible Procreation”
All three briefs highlight that it makes no sense for those defending Hawaii and Nevada’s bans to claim that allowing same-sex couples to marry will somehow prompt more different-sex couples to have children out of wedlock.
As the states point out, using the marriage ban to promote the “optimal” or “ideal family structure ignores that same-sex couples can similarly model “stable families based on mutual love and support,” so it could very well be a “poorly disguised attempt to codify discriminatory views as to what constitutes an ideal family.” The ACLU chapters were more explicit about the prejudicial intent:
Despite the continuity of incentives for heterosexual couples to marry, the Sevcik court hypothesized that allowing same-sex couples to marry would discourage heterosexual couples from marrying because “it is conceivable that a meaningful percentage of heterosexual persons would cease to value the civil institution as highly as they previously had and enter into it less frequently.” But the hypothesis that some heterosexuals will devalue marriage if gay couples are included in the institution is premised on those individuals’ dislike or disapproval of same-sex couples.
In the end, it seems that “responsible procreation” may just be conservatives’ way of using legal jargon to suggest that gay people have cooties. Marriage, they seem to suggest, is only worthwhile because same-sex couples are deprived of access to it, and if the bans are overturned, then marriage will no longer be meaningful or valuable to heterosexual couples.
(HT: Kathleen Perrin.)