The End of Marriage
by Allan Carlson
When Massachusetts officials set out to defend that state’s marriage law from a challenge by seven homosexual couples, their major line of defense was the necessary connection of marriage with procreation. Making babies, the state argued inGoodridgev.Department of Public Health,was the first purpose of marriage. By definition, same-sex partners could not create a child as a couple. This inability mattered, and barred them from marriage, because children usually do best when growing up with their two natural parents.
The trial court agreed with the state. The judge ruled that under Massachusetts law the primary purpose of marriagewasin fact procreation. Accordingly, the state could reasonably distinguish between homosexual claimants to marriage and those heterosexual couples at least “theoretically . . . capable” of procreation without relying on “inherently more cumbersome” non-coital reproductive methods.
Even Evan Wolfson, an acknowledged leader of the “gay marriage” movement, in his bookWhy Marriage Mattersagreed that:
At first glance, the “basic biology” argument seems to make some sense. After all, it doesn’t take more than a fourth-grade health class education to know that men’s and women’s bodies in some sense “complement each other” and that when a man and a woman come “together as one flesh” it often leads to procreation.But of course, on a four-to-three vote Massachusetts’ Supreme Judicial Court dismissed the procreation argument, pointing to couples in which the woman was over childbearing age or that were otherwise infertile. The state could not “rationally” tell them that they could not marry.
Indeed, the court noted, under state law even those “who cannot stir from their death bed may marry,” provided they were of the opposite sex. Moreover, infertility was not a ground for divorce, and by inference so not a bar to marriage either. In addition, Massachusetts law protected the parental rights of homosexuals and allowed same-sex couples to adopt children, and to enable “gay parenting” while denying the children involved the benefits of “family stability and economic security” found in a marital home was irrational.
If procreation is the purpose of marriage, Wolfson argues, the marriages of Bob and Elizabeth Dole, John and Teresa Heinz Kerry, and Pat and Shelley Buchanan should all be declared invalid. So should the marriage of the Father of our Country, George Washington, to Martha.
Another same-sex activist, Dale Carpenter, writing in theBay Area Reporter,argues that if there was any merit to the procreation argument,
We would require prospective married couples to sign an affidavit stating that they are able to procreate and intend to procreate. If in, say, 10 years they had not procreated, we could presume they are unable or unwilling to do so and could dissolve the marriage as unworthy of the unique institution.Since no one has proposed this, or anything like it, the defenders of marriage “do not take the narrow procreationist view of marriage very seriously.” Instead, they impose another rule: “Nobody is required to procreate in order to marry, except gay couples.” Such discrimination, he implies, could not survive a test by the “equal protection clause” of the Fourteenth Amendment.
Indeed, conservative Supreme Court Justice Antonin Scalia noted in his dissent inLawrence v. Texasthat:
If moral disapprobation of homosexual conduct is of “no state interest” for purposes of proscribing [private adult sex], what justification could there possibly be for denying the benefits of marriage to homosexual couples? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.When the Massachusetts Supreme Judicial Court, Evan Wolfson, and Antonin Scalia agree, it is fair to conclude that the procreation argument is in serious trouble. But before abandoning it, we should examine the bond between marriage and procreation. Where did it come from? Why is it no longer self-evident? What earlier developments weakened the procreative nature of marriage? And is it possible to salvage this appeal to procreation in the same-sex marriage debate?
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