Marriage Law: The ‘Infertility Objection’
Should the objections to same-sex couples’ marrying apply to certain opposite-sex couples too?




Since the Supreme Court decided U.S. v. Windsor in June of last year, about 20 courts have struck down state laws limiting marriage to unions of a man and a woman. In each of these cases the state argued, in one way or another, that there is a link between marriage and procreation such that only opposite-sex couples may legally marry.

Some of these courts scoffed at the argument. All of them rejected it. They relied largely upon the proposition that many opposite-sex couples are either unable or unwilling to have children but are nonetheless free to enter into state-recognized marriages.

A Colorado state judge said on July 9, for example, that “many heterosexual couples” are allowed to marry even though they do not have “the intent or ability to naturally procreate children.” On June 25, a panel majority of the Tenth Circuit wrote: “The elderly, those medically unable to conceive, and those who exercise their fundamental right not to have biological children are free to marry . . . apparently without breaking the ‘conceptual link’ [identified by the state] between marriage and procreation.”

Let’s call this the “infertility objection” to traditional marriage laws.

There is nothing new about it. In 1971, in Baker v. Nelson, the homosexual petitioners argued “that the state does not impose upon heterosexual married couples a condition that they have a proved capacity or declared willingness to procreate.” The Minnesota Supreme Court rejected the infertility objection in Baker. The U.S. Supreme Court summarily affirmed that decision a year later, stating that the case did not even present a substantial federal question.

What’s new about the infertility objection is that courts are now so uniformly beguiled by it. I say “beguiled” here advisedly, because these courts typically stop thinking once the infertility objection is made.

For example: Some courts say that the asserted link between procreation and marriage is “definitional,” and thus (they further say) “circular.” It is hard to make sense of this criticism. Definitions are not “circular” — or “linear,” or anything else of the sort — save in the limited sense that one must first have some idea of what one is trying to define, before one tries to define it. This is true of all definitions, those of natural entities (lemons and llamas) as well as existential/moral entities (families and football teams). These courts might be really saying that the state begs the question by relying upon an undefended definition of marriage. But the states in these cases do defend their understanding of marriage.

These courts might instead mean that “definitions” of marriage are misplaced in lawsuits, because all such accounts are fantastical or strictly theological or somehow for each couple to settle for their own relationship. But these same courts then — often in the exact same paragraph — define marriage as the “mutual,” ” lasting,” “intimate” “commitment” of the “two” spouses. These courts effectively take over the state’s definition of marriage, save for its essential link to procreation.

Post-Windsor courts have often taken over the Baker petitioners’ position, too. These courts maintain that linking marriage to procreation implies or entails that — somehow — infertile opposite-sex couples must be identified and barred from legal marriage. But these same courts, which define marriage as the “lasting,” “intimate,” “mutual commitment” of the two partners, never suggest that the relevant public authority inquire, interrogate, or otherwise vet — much less make it a strict condition — that the two persons applying for a marriage license really love each other, truly provide mutual support, genuinely intend to stay together permanently, or even intend to have sex with each other. So, these courts’ argument is radically defective: If it were sound, either it would exclude their own idea of what marriage is, or it would imply that no marriage law could pass constitutional muster.

In any event, how would the state vet couples for fertility? Should engaged men and women have to submit to the medical tests necessary to ascertain, to a reasonable degree of scientific certainty, that each is in good working order? And be required to swear (affirm under penalty of perjury?) that they intend to procreate? If so, is there to be a date certain for the happy event, after which their marriage license is revoked? Revocation, too, for married couples who try to have kids, but cannot do so because of infertility arising after their wedding? What about an engaged couple who say that they are uncertain about kids? Or that they are “open” to the prospect? May they marry, or not?

As the Minnesota court in Baker rightly suggested, any such regimen is bound to be both “unrealistic” and “offensive,” and would likely invade the couple’s constitutionally protected privacy.

Consider now the law pertaining to another basic requirement of marriage. Entering into marriage obviously requires a certain level of maturity, along with a robust willingness to settle the future course of one’s life. But the law does not run a battery of tests to ascertain any aspiring couple’s reflectiveness or maturity. In fact, getting a marriage license is no more complicated than registering a car. In each case you just need to be at least 18, and willing.