The Virtue of Marriage

I have been remiss in many of my posts, talking sometimes about theory and then getting caught up in the same-sex marriage debate in New York, that I forgot that one of Co-Op’s great assets is close analysis of case law. The splendid Turner symposium is only one example of that. So, I thought I would combine an important case with current events.

Yesterday, I had the wonderful opportunity to participate on a conference call with a few pro-gay marriage advocates in Albany and the staffs of some senators. This was probably more a who-you-know, rather than what-you-know opportunity because there are far more experienced minds than mine working hard on same-sex marriage. I casually mentioned that I don’t think referring to my desire to join the institution of marriage as an issue of “rights” is all that persuasive to folks whose interpretations of religious texts make them wary or concerned for the rights of other religious people and institutions. After all, I said, by saying our rights should win out, we are not so subtly minimizing their rights, which have to be regarded as at least competing.

Speaking about marriage outside the rhetoric or rights — “marriage equality”, “we all have the right to marry the one we love” are just two of the common phrases, signs and lines you see at pro-gay marriage rallies — is a bit of a heresy in the gay community. It’s a heresy that I embrace and am starting to write about in my scholarship. It’s a heresy because freedom of choice and non-discrimination are not what the marriage debate is about; those concepts only take us so far. Rather, it’s about whether my union is worthy of social recognition. To see this idea, we need look no further than Massachusetts’s landmark same-sex marriage decision, Goodridge v. Department of Public Health (but we do have to go after the jump!).

Chief Justice Margaret Marshall began her opinion granting same-sex couples the right to marry in Massachusetts using traditional rights language. The exclusion of same-sex couples from the institution of marriage runs afoul of “respect for individual autonomy and equality under the law.” We have the right to “choos[e] whether and whom to marry,” a right that “would be hollow… [if the state could] foreclose an individual from freely choosing the person with whom to share an exclusive commitment.” The issue seemed to be nothing more than right of the plaintiffs “to marry their chosen partner.” Very rights-based, very Rawlsian.

But, as I have said, the right to marry can take us only so far. If it were all about rights, why not take the state out of the equation altogether, leaving marriage to religious institutions? What’s more, if it were all about the right to choose, leaving the state out of making judgments as to who can marry, then there would appear to be no answer to the “polygamy is next” argument. Admittedly, I hate slippery slope arguments; legislatures draw lines all the time because, well, it’s their job. The point is, rights-based rhetoric gives them no reason to draw lines.

The real issue is associating marriage with social honor or recognition. I want to marry, as opposed to “civilly union,” not because the latter is awkward to say, but because there is a certain social virtue attached to the institution of which I want to be a part. Justice Marshall recognized this. To her, marriage is “one of our community’s most rewarding and cherished institutions,” and getting the state out of the business of marriage “would dismantle a vital organizing principle of our society.”

No, marriage should not be abolished, it should be expanded — another heretical word in the marriage equality movement — to the gay community. “In a real sense,” she stated, “there are three partners to every civil marriage: two willing spouses and an approving State.” That means that civil marriage is “at once a deeply personal commitment to another… and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family.” Justice Marshall looked at what the institution honors. She found that it was not procreation — the elderly can still marry, as can the infertile — but rather she found that the institution honors the commitment of two persons, straight or gay. So much for the polygamy train.

Justice Marshall tells us much about the necessary role of virtue and community and honor in our society. It is true in Albany, where we must engage fence-sitters in language they understand. It is true online, where a certain lawlessness is having devastating consequences for women and gay and lesbian teenagers, most notably. This final point and the theoretical debate played out above is what my current paper is about. Sorry… couldn’t resist. 🙂

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23 Responses

  1. Joe says:

    “If it were all about rights, why not take the state out of the equation altogether, leaving marriage to religious institutions?”

    Because marriage still retains some degree of logic as a legal concept [it might have been here, but some woman contract scholar noted the problems at the moment of just making it a private affair, partially the likely inequitable results given current realities] and society is also not ready to take such a libertarian approach.

    “What’s more, if it were all about the right to choose, leaving the state out of making judgments as to who can marry, then there would appear to be no answer to the “polygamy is next” argument.”

    We are talking about a certain type of barrier to choice, not a barrier to every type of choice under the sun. OTOH, listening to Judith Stacey recently, the polygamy issue is not overly simplistic either.

  2. Ari Waldman says:

    @Joe: Thank you for your comment. I am troubled by your use of the phrase, “some woman contract scholar,” which strikes me as flippant and disrespectful. While it is difficult to read intonation over the Internet and though I may just be a guest blogger this month, I believe Co-Op to be a much more supportive and welcoming environment than your comment suggests. I appreciate your substantive comments, though. That society isn’t ready for the libertarian approach is irrelevant to my theoretical point. And your second comments does highlight the reason why slippery slope arguments are weak. My point is simply that the theoretical rationale for bringing down this barrier has to come from outside the liberal ethic.

  3. Matt says:

    Ari, I’m not sure I understand this bit very well:

    the right to marry can take us only so far. If it were all about rights, why not take the state out of the equation altogether, leaving marriage to religious institutions?

    I guess I could see that if marriage didn’t come with any set state benefits (or burdens), but it does. Given that, isn’t the state a necessary part of the equation? Maybe marriage should not include as many rights and obligations as it does. But it seems that there are at least plausible reasons for some of them. I feel like I must have missed your point here so would be glad if you could explain it a bit more.

  4. Ari Waldman says:

    Thanks for your comment, Matt. I am referring to liberal ethic of rights, or the notion that a society is best governed when it does not wade into the moral debates of its members, or that, per Rawls, freedom is the individual choosing among ends. If you want to get married, go get married, the state is not going to tell you who you can marry or who you can’t. That libertarian vision is perhaps the ultimate end of the thought that the state should not discriminate among this or that kind of marriage. Rather, it should do nothing.

    In the real world, you’re right. The state has made the point of injecting itself into marriage, both by attaching a list of privileges to it and by allowing only certain people to get married. And, again, you’re right. There are plausible reasons for doing this. My point is that those plausible reasons cannot be based on the liberal philosophy of autonomy among ends. Otherwise, there would be no plausible way to distinguish between one barrier and another. Instead, the barriers have to be based on some type of moral judgment as to the worth or virtue of the union. We don’t allow adults to marry children because those unions are devoid of value because they victimize children. If it were simply a question of an adult’s right to marry whom he/she wants, the barrier to marrying a child would not make sense.

  5. Joe says:

    I did not mean to be flippant.

    At the time, I only recalled the person is a woman and a contract scholar. I didn’t recall the exact name, thus the “some.” I found the article I was thinking of:

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=952381

    I apologize if I was too colloquial.

    The “point” of the quoted question sounded practical to me. If marriage is seen as a “right,” you say, why won’t it work to just make it private? As noted, Prof. Sanger suggests some practical problems and anyway society isn’t ready to do that. It would be merely a thought experiment without any practical chance of occurring. So, if a “right” of marriage exists, practically and realistically, the state is going to be the place to protect it.

    As to the second issue, “rights-based rhetoric” is based on a certain logic that helps draw lines. Monogamous marriage w/o racial or sexual based distinctions is a right for various reasons.

    The social validation aspect is important and something same sex couples are rightly concerned about. But, legal marriage equality is important too to fully obtain such validation. If a couple is denied equal rights, the chance they will be socially deemed equal drops considerably.

  6. Matt says:

    Thanks Ari. That’s helpful. Here’s what I think I disagree with:

    My point is that those plausible reasons cannot be based on the liberal philosophy of autonomy among ends. Otherwise, there would be no plausible way to distinguish between one barrier and another. Instead, the barriers have to be based on some type of moral judgment as to the worth or virtue of the union.

    Take marriage of child to an adult. Do we have to forbid that because we think it’s “devoid of value”? No- we do it because we don’t think children are able to make these choices- they are not yet fully autonomous adults. (Note how we might allow teenagers who are especially mature to marry in some cases, because we think they meet the requirements.) There is a “moral judgment” here of sorts- that we should prevent harms of certain sorts, and that allowing children to marry would be harmful for them (perhaps much like allowing them to sign contracts on their own, or joining the military, or working in a coal mine, would be.)

    In Rawlsian terms we can appeal to “public reasons” to explain why we don’t allow child marriages, but that the large majority of reasons given against same-sex marriage can’t be put in terms of public reason, and those that can- harm to children, maybe- seem to not be supported by any competent evidence. What about polygamy? An argument against it in public reason might be that it leads to the subordination of women. Is that true? I doubt it’s a necessary truth, though it’s often been true. We should want the case to be made explicitly. But I’m pretty sure that liberals of the sort influenced by Rawls (or, probably, Mill) don’t face any special problems here.

  7. Ari Waldman says:

    @Matt. Thank you for that insightful comment. I don’t think they face a problem arguing for marriage equality. The Rawlsian arguments make some sense, if you accept certain assumptions that we need not go into here. I suppose I am most concerned about giving up the language of virtue to those who seek to deny marriage rights. Social conservatives have taken up the meaning of marriage fight and when we fight back with our conception of the purpose behind marriage, i.e., not for procreation, etc., I feel we are stepping outside the Kantian ethic by arguing the telos of things before the chooser of things.

  8. bacchys says:

    Not so much for the polygamy train. Legislatures can draw lines, yes, and even do so arbitrarily when not constrained by higher law. It’s part of politics. Line-drawing by courts is a different matter. A court ruling that marriage is a fundamental right such that legislatures cannot limit it to one man, one woman does call into question all the other prohibitions that legislatures have placed around marriage.

    A legislature that decides through the political process that marriage should be expanded to include same-sex couples is acting within its authority, and decision by the legislature to limit that expansion to just same-sex couples (and not include incestuous or polygamous unions, for example) is acting well within its authority. Marriage is a state institution because it serves the interests of the state, and the legislature is the body authorized to determine those interests and how best to meet them (with some limits). That’s not the role of the courts.

  9. Joe says:

    bacchys, are you saying that barring a classification by sex (which courts treat with great suspicion) would make it hard to justify any number of other classifications (including by number)? Why exactly? Sexual classifications are barred in many areas (let’s say drinking ages) without “all other prohibitions” being barred along the way.

    Marriage does not merely “serve the interest of the state.” It is a personal right because of its fundamental importance to happiness. Like other rights, the state has an important role in its promotion and security.

    Also, you say the state has “some limits” on their discretion. Who determines said limits if not the courts? The obvious limit is racial. Loving v. VA. Was that wrongly decided? After all, “how best” to regulate marriage is up to the courts.

  10. Joe says:

    That should be NOT up to the courts.

  11. Medium D says:

    While I certainly don’t disagree with Marshall’s opinion, I am a little hazy on the second part of the post here. If marriage is all about social acceptance and recognition, why isn’t the state’s view (as embodied in the legislature’s decision) taken into account? It’s ironic that Marshall refers to “two willing spouses and an approving state” as the equation, then goes on to point out that it’s not procreation, etc. that define the “two willing spouses” (thus enabling expansion to same-sex couples) without mentioning the “approving state!” After all, if the state approved, we wouldn’t be in court!

  12. PrometheeFeu says:

    “If it were all about rights, why not take the state out of the equation altogether, leaving marriage to religious institutions? What’s more, if it were all about the right to choose, leaving the state out of making judgments as to who can marry, then there would appear to be no answer to the “polygamy is next” argument. Admittedly, I hate slippery slope arguments; legislatures draw lines all the time because, well, it’s their job. The point is, rights-based rhetoric gives them no reason to draw lines.”

    I find this very unpersuasive. Why should there be an answer to the “polygamy is next” or even the “incest is next” arguments. If indeed those are “next”, my question is: “So what?” Perhaps it is time to take marriage out of the hands of the State entirely and create a more generic structure for taxation purposes.

  13. bacchys says:

    I’m saying marriage is a state institution. A state could abolish marriage. It’s a bizarre right if a state can legislate it out of existence.

    If it is a fundamental right than the state has to show a basis for prohibiting it to some people, whether those prohibitions are based on sex, number, age, or degree of consanguinity.

    Sex isn’t quite the suspicious classification you think it is, either, I don’t think. Courts recognize differences between the sexes. Separate bathrooms haven’t been declared unconstitutional, I don’t think.

  14. bacchys says:

    On Loving (I didn’t forget). The difficulty here was that blacks could marry. The institution of marriage was the same (one man, one woman) regardless of the race/s of the partners. The miscegenation laws prohibited whites from marrying outside their race. That ran afoul of the equal protection clause as the Court had developed said clause as it relates to race.

    Same-sex marriage isn’t the same as different-sex marriage. While similarities can certainly be pointed out, there are fundamental differences between the arrangements that pertain directly to the purpose/s for which the state created/adopted marriage as an institution in the first place.

    So, despite the court’s declaration otherwise, the right invoked in Loving wasn’t a right to marry, but a right to equal protection of the laws. Differently situated persons, however, aren’t being unequally treated simply because they are differently treated. It’s not a violation of the Constitution to prohibit able-bodied people from parking in handicapped spaces, for instance.

  15. Joe says:

    I appreciate the reply.

    The Supreme Court has for some time held that marriage is a “fundamental right.” I don’t see states any time soon doing away with the institution that has been around for so long. It will tweak it as has occurred repeatedly in lots of ways.

    Sex (U.S. v. Virginia) classifications have to be justified on “exceedingly persuasive” grounds and the privacy of separate bathrooms (and places do survive with unisex bathrooms) is one such case. There is no such strong ground in place here to justify the classification, particularly given the resulting burdens (not really in place in the bathroom example).

    Turner v. Safley lists various reasons why marriage exists. They apply to SSM. But, one doesn’t need a court ruling to see that Ellen DeGeneres and Portia DeRossi fits the bill for marriage as much as if Ellen married a guy. Especially given Ellen is around the post-menopause stage. They are not “differently situated” enough to warrant deprivation.

    Loving rested on two grounds — equality and due process. Blacks could marry. Whites could marry. They couldn’t marry each other. I don’t see the relevant difference between that and changing the classification to sex. At the time, miscegnation was seen as unnatural. It wasn’t “marriage” as nature intended to marry them.

    We now see that as ridiculous. The idea of no fault divorce or women having an equal role in marriage was once deemed ridiculous. That changed. As is the idea that SSM is some lesser form of marriage.

  16. bacchys says:

    The “fundamental right” the Court has recognized in a number of cases was the right to marry one member of the opposite sex. The definition of marriage in both custom and law was “one man and one woman.” The institution itself reasonably fits the purpose for which the states created/adopted it: to encourage procreative couples to enter into relationships over which the state has some regulatory power.

    That’s in essence what civil marriage is: two people who are giving the state permission to regulate their relationship to some degree.

    The Court has said that’s a “fundamental right.” I think the Court has been wrong. As previously said, it’s a bizarre right if the state has the power to abolish it. That it’s unlikely any state will do is is beside the point. There is no constitutional mandate that the states recognize marriage.

    In Loving, the state was faced with a couple which met the definition of marriage, but which was barred by a positive state prohibition from marrying. In that, the Lovings were more akin to a couple of first cousins seeking to marry in a state which prohibits such- or siblings- than a same-sex couple, because the latter isn’t positively prohibited from getting married. Rather, they simply don’t fall within the definition of couples seeking to get married, just as four people wandering down to the courthouse seeking a big group marriage license will find themselves unable to do so because marriage is an institution involving only two person.

    I would also note that the Loving Court’s reasoning works just as well without viewing marriage as a fundamental right. I would also note that the Loving Court cited Skinner v. Oklahoma, in which procreation is recognized as the primary reason for civil marriage. Marriage defined as one man and one woman is not unreasonable because no other arrangement of persons is capable of procreation. That’s not a reason politically to oppose same sex marriage, but it is a reason the courts shouldn’t be in the business of redefining marriage by fiat. The courts exist to say what the law *is,* not what it should be.

    U.S. v. Reynolds (a polygamy case) is still good law. It hasn’t been overruled.

    I agree that same sex marriage ought to be adopted, but New York has just shown how it should be adopted. California and Massachusetts have taken the wrong path.

  17. Joe says:

    The definition of marriage in both custom and law included inequality for women (including coverture, a type of “legal death” for the wife), no spousal rape, strict rules for dissolution, no ability even voluntarily to testify against your spouse and so forth. Things change. See, e.g., Plessy (segregation isn’t unequal except in the minds of blacks) vs. Brown v. Bd. of Education (inherently unequal).

    SSM as much as other marriages involves state regulations, which have limits.

    This is somewhat besides the point. Since it does recognize it, it has to follow constitutional commands. When the state, after having marriage for recorded history, does away with it, I’ll worry about how “bizarre” it is to recognize marriage is basically a given.

    “The” definition of marriage at the time of the law didn’t include interracial couples, which is why it was deemed perfectly fine until later on to disallow it. The judge who tried the Lovings noted God separated the races and “marriage” didn’t include interracial marriage. Anyway, whatever a “word means,” it can’t be legal if unconstitutional. [To jump ahead, this is a job for the courts.]

    Yes, since there were two grounds in Loving, taking one away would still leave one. Skinner didn’t really say procreation is the “primary” reason for marriage (it even listed “marriage and procreation,” suggesting they aren’t the same thing), but anyway, marriage is not only about that today at any rate. Turner v. Safley listed about four different categories of reasons people get married. It really cheapens marriage to just talk about procreation as if senior citizens and many others are just add ons. Discrimination by sex has to be “extremely persuasive.” Letting so many people who can’t procreate get married only when the opposite sex is involved doesn’t cut it.

    SSM is the issue here, not polygamy.

    State legislatures that overturned its rules against interracial marriage did things the easy way too, but we have judicial review in this country for a reason, including to uphold constitutional rights. NY meanwhile long before the US Supreme Court judicially overturned laws that targeted same sex couples having sex. Correctly so.

  18. Joe says:

    So much for re-litigating usual stuff.

    The pretextual nature of the procreation argument might warrant another word. Bisexuals in particular can procreate accidentally and marriage provides a restraint either way, but the law discriminates on what one they can pick.

    Precedent connects marriage with children and family life. Not just procreation. Same sex couples have children and families. Why is only one aspect of precedents singled out here? A widow or widower with children is assisted no matter what the sex of their new partner might be. The children of gay and lesbians are harmed. To what end? Evenhanded rules will not inhibit the value of dealing with unexpected procreation.

    SSM would have its own values, including in handling unexpected events with implications on children. Wrongful discrimination often is allegedly justified because of some minor issue that can be pointed out to be a difference. Many many women aren’t qualified for a job. Let’s not waste our time hiring any of them. That isn’t how things are supposed to work.

    If SSM should be adopted, I would think it is because the discrimination isn’t reasonable. It isn’t just good policy. It’s a constitutional matter. I will leave it there.

  19. bacchys says:

    Things do change, though Plessy isn’t the best example of it. The Court had earlier eviscerated the Fourteenth Amendment, and Plessy was an example of the harm that evisceration had and continues to cause.

    The definition of marriage can change, too, through the democratic process. It’s the role of the courts to say what the law is, not what they want it to be, and marriage (save in a few states and only two the right way) is an institution defined as one man, one woman. Unlike incest and polygamy, there’s no ban on same sex marriage. It just doesn’t exist.

    Yes, marriage connects children and family life. That’s part of what’s included in the term “procreation” on these issues. The state isn’t just interested in getting sperm to meet ova. Its interests include the outcome of such meetings. The state’s interest in marriage- the reason the state recognizes marriage in the first place- is to create a basis for the state to be involved in the relationship. This is the “fundamental right” that folks are talking about: the right to give the state the power to regulate one’s relationship with one’s chosen life-partner.

    Skinner’s “marriage and procreation” might be credibly read as separating the two if the two combined weren’t said by the Skinner Court to be “fundamental to the very existence and survival of the race.” Moreover, the marriage the Skinner Court is discussing isn’t a sex-neutral arrangement of two persons (nor is the marriage in Loving), but an arrangement of one man, one woman.

    SSM isn’t really the issue here, either: it’s the abuse of power by courts to impose SSM on the states. Polygamy and any other marital arrangement becomes an issue because the reasoning cited in the courts by SSM advocates works as well for those other arrangements as it does for SSM.

    All laws are discriminatory by nature. Brothers and sisters are discriminated against even if they aren’t biologically related to each other. There’s no scientific reason to keep adopted siblings from marrying, but the states invariably prohibit such marriages anyway. So the mere fact a law is discriminatory isn’t much of an argument against the law.

    The real issue before the courts (though they’ve ignored it, from what I can tell) is whether or not marriage as it is currently defined reasonably fits the states’ purposes in creating/adopting it. As procreation (to include raising the product of procreation) is the primary purpose- to get procreative couples into an arrangement in which the state has some regulatory power- defining marriage as one man, one woman is reasonable. Though polygamous arrangements can produce offspring, they can’t all do it together at once. Same-sex couples can’t at all.

    You make powerful political arguments for adopting same sex marriage. I agree with them. Adoption, in vitro fertilization, and a host of other strong, valid reasons exist for extending marriage to include same sex couples. But political reasons aren’t legal reasons. Legislatures can act arbitrarily in ways that courts cannot.

    There are two possible outcomes from the courts mandating SSM under the rubric of equal protection: other marital arrangements also force their way into being legally recognized, or the law gets bastardized once again.

    If you’re done, Joe, let me just say that I appreciate the chance for a civil discussion of this issue.

  20. Ari Waldman says:

    My apologies for being remiss in addressing the comments. I have been otherwise occupied. But thank you to the commenters for a civil discussion. I am content to leave the conversation going, but a note about the purpose of marriage is important.

    Not only has the Supreme Court long ago divorced the purpose of marriage from procreation, but the current status of marriage proves as much. Opposite sex couples do not have to prove they want or can have children before getting a marriage license. We do not ask women to prove they are not infertile or haven’t had medical conditions or surgery that prevent them from having children. We also do not deny elderly couples marriage certificates even though women of a certain age can no longer have children due to menopause. We also do not deny marriage certificates to opposite sex couples who explicitly state they will never have children. We allow couples to use contraception to avoid having children, and the liberty interest in those private sexual decisions is clear.

    What’s more, even if you wanted to retain the connection between marriage and the possibility of procreation, same-sex couples can produce children, through surrogacy arrangements. To suggest that that method of procreation is somehow not part of the procreative scheme is to void any surrogacy as legitimate procreation in your vision for heterosexual couples.

  21. bacchys says:

    I wasn’t aware the Court had divorced procreation from marriage. Turner v. Safely doesn’t do it, though many have tried to leverage that case to that purpose.

    From U.S. v. Reynolds through Loving, the linkage between procreation (to include raising the product of said procreation) has been affirmed time and again, both by the states arguing in support of their marriage statutes and by the courts deciding those cases.

    That infertile couples and those who don’t intend to procreate can get married doesn’t say much. There’s no constitutional requirement that the state make the definition even more narrow. It is enough that the institution as defined reasonably meets the purposes for which it was created/adopted.

    Yes, same sex couples can have children. They can’t really “produce” them, but they can- and do- have children and form families. There are good political reasons for extending marriage to include same sex couples and good policy reasons for doing so. The state has an interest in the well-being of those families as much as it does with a more traditional family. But good political and policy reasons don’t create a constitutional case.

  22. Ari says:

    That argument was made in the Prop 8 trial.

    “Proponents’ procreation argument, distilled to its
    essence, is as follows: the state has an interest in encouraging sexual activity between people of the opposite sex to occur in stable marriages because such sexual activity may lead to pregnancy and children, and the state has an interest in encouraging parents to raise children in stable households. Tr 3050:17-3051:10. The state therefore, the argument goes, has an interest in encouraging all opposite-sex sexual activity, whether responsible or irresponsible, procreative or otherwise, to occur within a stable marriage, as this encourages the development of a social norm that opposite-sex sexual activity should occur within marriage. Tr 3053:10-24. Entrenchment of this norm increases the probability that procreation will occur within a marital union. Because samesex couples’ sexual activity does not lead to procreation, according to proponents the state has no interest in encouraging their sexual activity to occur within a stable marriage. Thus, according to proponents, the state’s only interest is in oppositesex sexual activity.”

    You suggest that natural forms of procreation are a permissible constitutional basis for denying same-sex couples access to the institution of marriage. Essentially, you are saying that it is ok to treat classes of people differently because one cannot “naturally” “produce” children because the state has an interest in couples producing children. Even assuming the natural and produce part, which I resist, because gay couples can “produce” children just as naturally as anyone else — you’re equating that difference with a permissible basis for discrimination. That is indeed a matter of constitutional dimension — equal protection and due process are indeed constitutional reasons.

    And, the notion that it is a permissible basis for a state to discriminate has never been the case.

    California, like every other state, has never required that
    individuals entering a marriage be willing or able to
    procreate.
    a. Cal Fam Code § 300 et seq;
    b. In re Marriage Cases, 183 P3d 384, 431 (Cal 2008) (“This
    contention [that marriage is limited to opposite-sex
    couples because only a man and a woman can produce
    children biologically related to both] is fundamentally
    flawed[.]”);
    c. Lawrence v Texas, 539 US 558, 604-05 (2003) (Scalia, J,
    dissenting) (“If moral disapprobation of homosexual
    conduct is ‘no legitimate state interest’ for purposes of
    proscribing that conduct * * * what justification could
    there possibly be for denying the benefits of marriage to
    homosexual couples exercising ‘the liberty protected by
    the Constitution’? Surely not the encouragement of
    procreation, since the sterile and the elderly are
    allowed to marry.”);
    d. Tr 222:22-223:22 (Cott: “There has never been a
    requirement that a couple produce children in order to
    have a valid marriage. Of course, people beyond
    procreative age have always been allowed to marry. * * *
    [P]rocreative ability has never been a qualification for
    marriage.”).

    Never has the state inquired into procreative capacity or
    intent before issuing a marriage license; indeed, a marriage
    license is more than a license to have procreative sexual
    intercourse. FF 21. “[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.” Lawrence, 539 US at 567. The Supreme Court recognizes that, wholly apart from procreation, choice and privacy play a pivotal role in the marital relationship. See Griswold, 381 US at 485-486.

  23. bacchys says:

    I suggest that opposite sex marriage is a reasonable institution to create when the primary purpose is procreation (as fully stated in the Prop 8 trial). Few, if any, states actually ban same sex marriage. They just don’t recognize it. It isn’t a marriage. It’s on a par with marrying a rock. There’s no law against it, but you aren’t going to get a marriage license from the state.

    The states aren’t denying same sex marriage. They just aren’t recognizing it. Contrast that with polygamy, which is positively banned. The FLDS, which practices polygamy, is targeted from time-to0time even for marriages which happened outside of state auspices. I don’t recall reading of any same sex couples getting hounded by the law for being “married” without state approval. I realize that for those who want a marriage license this is a distinction without a difference, but it is an important distinction when considering whether the law really violates anybody’s rights. Someone may really, really want to marry a rock. That doesn’t mean the state has to recognize it.

    Procreation isn’t a qualification for being married, but that doesn’t detract from it being the state’s purpose for creating/adopting marriage. New York has reasonably decided to expand marriage, but they aren’t required to narrow that expansion to include same sex couples which might not exactly fit their purpose for doing so.

    The government has a home mortgage deduction to help encourage home-buying. That deduction isn’t withheld from people who would buy a home without it. That doesn’t make either the deduction or the purpose for creating it invalid.

    Only Lawrence above is a Supreme Court case, and your cite is from Scalia’s dissent. The Court has never divorced procreation from marriage.