I have written about the "procreation argument" a number of times on this blog. In December 2003 I responded to an article by Eve Tushnet which led to a further series of posts from her and from me. A year ago I responded to an op-ed by Douglas Kmiec which led to a lengthy discussion in the comments. (In both cases I apologize about all of the dead links). As I've noted more recently many states are dropping the procreation argument because it seems to make little sense. The issue, though, has come up a number of times lately in this blog.
In comments to this thread, Chairm takes exception to my drawing attention to exceptions. I believe most of his concerns were based on a misunderstanding of my argument. I do not point to exceptions in order to make the claim that "Since there are exceptions, the general rule must not hold." That would be silly. Rules can always have exceptions. I pointed to the fact that in some states certain couples are allowed to marry only if they cannot marry. This does not indicate that marriage has nothing to do with procreation, nor even that procreation is not the primary purpose of marriage. It does, however, provide strong indication of a number of things. It shows, for example, that the legislature has contemplated the situation of a non-procreative couple marrying and deemed it acceptable, not because it would be too difficult to determine procreative ability, but rather because there are also other purposes to marriage. It also indicates that marriage is not harmed by allowing non-procreative couples to marry. In the comments I explained the situation as follows. A theater may wish to keep cans of soda confined to the lobby and out of the theater for fear the soda might spill and damage the seats. That is a reasonable policy and the fact that some people might sneak sodas in, or the fact that the ushers to do not think it worth the effort to search all bags, does not indicate that the theater would like to keep soda cans out. Thus it is still perfectly reasonable to stop a person from obviously carrying a soda can into the theater. However, if the theater allowed some people into the theater when they were obviously carrying soda cans, or even allowed them into the theater only if they had soda cans it becomes doubtful whether the ushers are truly concerned about soda cans entering the theater. At the very least the theater would need to explain why certain people bringing cans in was harmful and others bringing cans in was not harmful. It is at this point in the discussion about procreation--when proponents of same-sex marriage prohibitions argue about why it does no harm to marriage to allow say elderly couples to marry, but not same-sex couples to marry--that it is often revealed that the underlying rationale involves a reliance on traditional gender stereotypes.
These discussions lead me to ask directly, "What is the harm in allowing a non-procreative couple to marry?" One common response is that it would send the message that marriage is not about procreation. That is simply not true. It would only support the statement that procreation is not the sole purpose of marriage. There are a number of other purposes of marriage and allowing same-sex couples to marry would be a mere recognition of this indisputable fact. Nephtuli, though, does provide some detail about the harm in allowing same-sex couples to marry. He writes:
Society has many reasons to integrate the sexes; one such reason is procreation. Every society has an interest in surviving and to exist it needs to breed new members. That idea is best realized through opposite sex couples having children. Society therefore supports procreation by promoting integration. Integration is this vein should be promoted.
Obviously if we allowed SSM, men and women would still integrate since the vast majority of the public is heterosexual. But one could also argue that without preferences universities would still accept members of the preferred minorities. The idea is that a lower number would be selected and that goes against a state interest.
If we allowed SSM, less men would integrate with women and vice versa. The reason is that (some) homosexuals have historically married people of the opposite gender when no other avenue was available. Whether it was societal pressure or legal recognition, homosexuals did marry members of the opposite gender and procreated. Today we have a much lower level of societal pressure, but for now the only legal avenue for recognition is heterosexual marriage. It would stand to follow that some homosexuals who would enter into SSMs if they had the opportunity might do so.
Without question there are people who are attracted to both sexes or people who are more attracted to their gender but are still attracted to the opposite gender. Many of these people would choose marriage and the benefits it provides over a non-marriage relationship with a member of his/her sex. That choice has a much higher probability of resulting in procreation than a same sex relationship.
But if we allowed SSM, many of those people would likely choose to enter into that relationship. Society is therefore promoting procreation by leaving open only one avenue for marriage.
At least this is an argument. If we allow same-sex marriage, some individuals who would otherwise have entered into an opposite-sex marriage will now choose instead to enter into a same-sex marriage, thus decreasing the chance of having babies. The state would therefore like to prohibit same-sex marriage in order to get more people into opposite-sex marriages and thereby hopefully increase the number of babies being born.
From a policy perspective, this sounds like awful governmental policy to me, the idea that we should pressure people into opposite-sex marriage. From the court's perspective, though, we must restrict ourselves to asking whether this is a compelling governmental interest and whether the restriction is necessary to achieving this objective. (Or in states where gender classifications are subject only to intermediate scrutiny we would ask whether it is an "important governmental objective" and whether the restriction is "substantially related to the achievement of that objective.) Channeling people into having more babies, though, is probably not even a legitimate governmental interest. It is clear from a number of court decisions that we possess the right as individuals to make our own decisions with regards to marriage and procreation. The government certainly has an interest in seeing that babies that are born are cared for to the best of our ability. It has an interest in helping those that wish to have babies to do so. It does not have an interest though in pressuring an individual to procreate. That choice belongs to the individual and not the government. [Again, from a policy perspective, I would argue that there is no need for more babies. Rather we should focus on caring for the babies that are born.] Even if the interest in baby production was a legitimate state interests, in fact even it were an important governmental objective, the policy of prohibiting same-sex marriage can hardly be said to be substantially related to this objective. The argument is that by denying the recognition of one's same-sex marriage, one might instead seek out an opposite-sex partner, and then one might procreate with that partner, thereby having a child whereas one might not have had a child with a same-sex partner. The policy is certainly not narrowly tailored, as couples who have children in same-sex relationships are still denied marital recognition (incidentally doing a great deal of harm to the child) and the denial of recognition is no guarantee that anyone will seek out an opposite-sex spouse instead, much less an opposite-sex spouse with whom they will subsequently have a child.
Finally I would note that the channeling of people into opposite-sex marriage is not likely the true rationale for the policy of denying same-sex marriage. I have certainly seen no evidence that lawmakers are refusing to recognize same-sex marriages out of fear that people will choose such relationships over heterosexual relationships. As J. Ginsburg noted in US. v. Virginia, "Benign justifications proffered in defense of categorical exclusions, however, must describe actual state purposes, not rationalizations for actions in fact differently grounded."
By the way, in that same post Nephtuli wrote the following concerning definitions:
To use my earlier example could someone who wished to marry a tree argue that he is being discriminated against and then require the state to provide a rational basis for this classification? Of course not. Can anyone imagine a court going through the whole Equal Protection analysis and then forcing the state to provide a rational basis for its law? I certainly cannot. The court would likely just point out that trees simply cannot marry.
There's no difference between a man-tree marriage and a SSM. Legally, neither cannot exist by definition.
In addition to being extremely offensive, this analogy makes no sense. If the tree were to bring suit, the case would get thrown out because trees can't bring suits. (The classification being used is one of human beings, a classification that is more than acceptable as only humans have rights under our Constitution). If the human were bringing suit the case would get thrown out because it has nothing to do with how the human is classified. Nobody has the right to marry that tree. Unlike humans and trees, men and women are both individuals deserving of equal protectiono of the laws. His analogy is indicative of the denial of our common humanity embedded in gender discrimination. An apt comparison would instead have been to Pace v. Alabama. There it was argued that, by definition, a same-race couple could not violate section 4189 of the Alabama Code. By definition it could only be violated by a member from each race. As the court wrote, "Indeed, the offense against which this latter section is aimed cannot be committed without involving the persons of both races in the same punishment." Nephtuli is right in one regard. When the court resorted to that definition it threw out the case with almost no analysis.