Politics & Policy

Same-Sex Marriage Is Not for Judges

People's decision.

Same-sex marriage is back in the news. 4-3, the New Jersey supreme court recently mandated equal benefits or marriage or both for same-sex couples. On Tuesday, eight states will consider the opposite; namely, whether to join 20 other states that have already amended their state constitutions to provide that marriage is between a man and a woman. Pre-election polls suggest Arizona and possibly Colorado, Virginia, and Wisconsin are now having second thoughts about reaffirming the traditional.

They shouldn’t. Same-sex-marriage bans make good sense for many sound cultural and religious reasons. But beyond that they come to terms with something often overlooked, the empirically undeniable fact of de-population.

As the work of Ben Wattenberg and Nicholas Eberstadt of the American Enterprise Institute records: “[o]ver the next few decades, world fertility levels are projected to continue a dramatic decline, leading to a deep reduction in previously expected levels of world population. In modern countries, fertility is already below the ‘replacement level’ of 2.1 children per woman; the developing world will follow. The potential implications for commerce, pensions, the environment, and geopolitics are enormous.” Which leads one to think that a court ruling on same-sex marriage might want to consider the impact of subsidizing or affirming an intrinsically non-procreative social arrangement.

Not so. The New Jersey court, like the Massachusetts court before it, deliberately excised procreation from the definition of marriage. The New Jersey judges even comment that the state did not even advocate the importance of procreation. Had they done so, say the judges, it is answered by surrogate pregnancy and artificial insemination. It’s not clear what the court means by “answered” but there is no available data set finding the number of children conceived by artificial means to be anything more than the tiniest fraction of children generally. The Los Angeles Times recently published a multi-part series on the expense (over $100,000) and uncertainty involved in two gay men pursuing a surrogate pregnancy. The series more than reveals why artificial insemination is no “answer” to depopulation.

The decline in population threatens the viability of everything from welfare programs to troop levels in the military. Yet, America has only the foggiest grasp of how the shrinking of successor and younger generations has manifold effects on the costs and availability of health care, for example.

Aiding and abetting the errant judges is some editorial essay writing suggesting that just as the U.S. Supreme Court invalidated bans on inter-racial marriage, it will ultimately come round to favor same-sex marriage. Maybe, but if it comes to pass, it will be because race and sexual orientation will have mistakenly been declared analogous. Race tells us nothing about the character or capability of a person, but sexual orientation tells us everything about the natural potential for giving birth.

There are additional grounds beyond de-population to oppose same-sex marriage, but most of these reasons resonate in “tradition” which the New Jersey judges smugly declared to be “circular.” With all due respect, the circularity is a product of a narrowed, secular mind that is no longer capable of recognizing the self-evident truth of created human nature — a presupposition memorialized in the Declaration of Independence. Well, no matter, the best arguments for traditional marriage — such as “two becoming one” or, for Christians, understanding marriage as the equivalent of Christ’s love for his church (i.e., total self-giving) — are explicitly anchored in faith. Properly, no secular court is in a position to judge these.

No, natural procreation is the state’s best support for traditional marriage. As in economics generally, one gets more of what one subsidizes, so extending equal benefits to same-sex couples yields an increase in non-procreative ranks. Moreover, the European experience in widening marriage beyond its traditional base appears to result in a counter-intuitive disinterest in marriage — following the old Groucho Marx quip about not seeing any point to joining a club that would have him. Groucho’s line is funny, but the consequence of shunning marriage for child-rearing is not. Ease of relational exit in the presence of children presents the peril of single-parenting with all of its well-documented increase in juvenile crime, poverty, illiteracy, and poor health.

The heart of the argument against same-sex marriage is thus either an empirical or spiritual claim, not a judicial one. If the former, the burden is on the proponents of same-sex marriage to demonstrate in legislative assembly that recognizing same-sex marriage will not have a tangible, adverse impact on procreation. If it is a spiritual claim, the democratic process must be mindful of this nation’s commitment to religious freedom.

In either case, the case for same-sex marriage has not been made, and the people would be foolish to accept it.

 – Douglas W. Kmiec, former constitutional legal counsel to Presidents Reagan and Bush, is chair and professor of constitutional law at Pepperdine University.

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