Same-sex marriage and procreation

In the long struggle to fully legalize same-sex marriage, one common objection raised by opponents for decades, and used by courts to support laws banning same-sex marriage, is that homosexual couples are not truly equal to heterosexual couples, because homosexual couples cannot procreate. Because of this inequality, same-sex couples do not qualify for equal protection in the marriage laws in light of the 14th Amendment to the United States Constitution. Because they can't procreate. If advocates for same-sex marriage continue to lose the big fights to make legal same-sex marriages, they will to have to confront this issue of procreation, for example, by working with scientists to make same-sex procreation a practical reality (see, for example, the latest on female sperm as one way to achieve same-sex procreation.

What follows is a review of how people in various arenas have tried to demand/legislate that one requirement for marriage is the ability to procreate. A very lengthy history of attempts to connect marriage and procreation has been published in a report "Marriage's Foundation on Procreation Throughout History" .

Marriage and procreation in the law

In 1996, Congress passed the Defense of Marriage Act that define marriage in Federal law as "a legal union between one man and one woman as husband and wife". It is hard for the courts to differ in their views in light of such Congressional intent. To reinforce this message, Congress explained in a House Report (H.R. 104-664 at 33, 104th Congress, 2nd Session, 1996) that key to this requirement is procreation:

Nothing in the U.S. Supreme Court's recent decision (referring to Romer v. Evans, 116 S.Ct. 1620 (1996)) suggests that the Defense of Marriage Act is constitutionally suspect. It would be incomprehensible for any court to conclude that traditional marriage laws are .... motivated by animus toward homosexuals. Rather, they have been the unbroken rule and tradition in this (and other) countries primarily because they are conducive to the objectives of procreation and child-rearing.

In part, Congress made this statement to overrule a comment made by the Supreme Court in a 1965 case, Griswold v. Connecticut (381 U.S. 479) that (the cause of, or social project of) procreation is not essential to marriage:

Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.

Marriage and procreation in the courts

September 2007 - in this month, the Maryland Court of Appeals rules against same-sex marriage in the state of Maryland. The court rested much of its decision on procreation, as reported in a Washington Post blog and in the Maryland court's 244 page decision :

But the court sided with most other state courts in rejecting that idea (there is a fundamental right to marry), arguing that "the right to marry enjoys its fundamental statute due to the male-female nature of the relationship and/or the attendant link to fostering procreation of our species."

Marriage is all about "safeguarding an environment most conducive to the stable propagation (procreation) and continuance of the human race" and that's what makes regulation of marriage "a legitimate government interest", the majority said.

"The fundamental right to marriage and its ensuing benefits are conferred on opposite-sex couples not because of a distinction between whether various opposite-sex couples actually procreate, but rather because of the possibility of procreation, the majority said.

The court also found that the state has an interest in promoting procreation and that the General Assembly "has not acted wholly unreasonably in granting recognition to the only relationship capable of bearing (procreating) children traditionally within the marital unit."

October 2006 - in this month, a California Appeals Court (1st District) rejects attempt to allow same-sex marriage in the state of California, saying it is an issue for the voters and legislature, not the courts. The judges distinguished around an influential California Supreme Court case, California v. Perez, which eliminated laws banning interracial marriages, by relying on the procreation argument:

"Marriage has historically stood for the principle that men and women who may, without planning or intending to do so, give life to a child (procreate) should raise that child in a bonded, cooperative and enduring relationship."

Marriage and procreation in the churches

October 2007 - in this month, Catholic dioceses as represented by the Iowa Catholic Conference called for a state consitutional amendment to ban same-sex marriages, as reported in the Des Moines Register , stating in part in a statement:

Neither church nor state can alter the basic meaning and structure of marriage." ... "In a manner unlike any other relationship, marriage makes a unique and irreplaceable contribution to the common good of society, especially through the procreation and education of children.