Marriage Law: The ‘Infertility Objection’

by Gerard V. Bradley
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.

Now, one could say about the age and gender prerequisites that the state presumes the maturity and fertility of men and women over 18. One could say of each prerequisite that the law relies upon it as a more or less adequate proxy for the more precise relevant quality (of responsibility and fertility). One could say that these proxies satisfy the state’s educative obligations in regard to marriage, by signaling in general terms what marriage is really about. One could say that the law goes as far as it reasonably can in attempting to limit marriage to those who are mature and interested in having kids. Once could say that, were the state to attempt more rigor, it would violate the couple’s legal rights and legitimate privacy expectations.

One could — and should — say all these things. For all these reasons, the Baker court rightly said that “the classification is no more than theoretically imperfect . . . [and] ‘abstract symmetry’ is not demanded by the Fourteenth Amendment.”

In fact, because men can father children well into old age, the only imaginable categorical exception to traditional marriage laws would be marriages to which a surely post-menopausal woman — say, aged 55 or over — is a party. But that would not be a rational exception to make. For some of these women will be widows with young children, perhaps born to them at age 40 or 45. These women might well be marrying to give their children the nearest approximation available to the maternal/paternal family upbringing which the state’s laws do what they can to bring into being for all children. And this could be true of widows with children up to age 18, so that the state would have no reason to prohibit, and ample reason to promote, at least some marriages of women up to around age 60.

Conversely, some women beyond the age of fertility will be marrying aged widowers with young or not-so-young children. These men might marry older women for the same reason that older widows might marry them: to give children still in the home a close approximation of family life. Besides, some older infertile couples marry with a view to adopting and bringing up, or simply fostering, children, perhaps the grandchildren or other relatives of one or both of them.

That leaves only unions involving elderly women who marry for the first time, where the couple have no existing children and do not intend to adopt or foster any, as a candidate “class” for exclusion from state-recognized marriage. Let’s call these couples “free riders.” But any of these couples could subsequently decide to adopt or foster. For that reason alone the state possesses a rationale to sanction their unions. Besides, most elderly couples are “childless” in the sense that they are empty-nesters; some others married young but were never blessed with the children they desired to have.

That some few of all the “childless” elderly couples around town are actually “free riders” would be, perhaps, generally assumed. But few people would know which couples. And their presence among a much larger population of married opposite-sex couples would be no scandal. It would call for no redefinition of what legal marriage is about, as legal recognition of same-sex relationships as marriages surely does. The state has no interest in amending its legal prerequisites for marriage in an effort to disqualify this residual and undetectable class of “free riders.”

In truth, marriage and the state’s rationale for recognizing it include an essential connection to procreation. For that reason, no same-sex couple may legally marry; otherwise, the marriage known to law would be, essentially and by definition, infertile. For the same reason, and in the light of all the foregoing considerations, all opposite-sex couples should be free to enter into state-sanctioned matrimony.

— Gerard V. Bradley is a professor of law at the University of Notre Dame.