Bench Memos

The Prop 8 Case and the Infertile-Couple Canard

Marriage developed in this country, and everywhere in human civilization, as a male-female union because societies recognized that opposite-sex couples, as a class, have the capacity to procreate. Marriage exists to increase the likelihood that children will be born and raised in stable and enduring family units by the mothers and fathers who, often unintentionally, naturally generated their very existence. As Prop 8 proponents show (Brief at 31-35), leading thinkers over the centuries—including many, like Bertrand Russell, anthropologist Claude Levi-Strauss and sociologist Kingsley Davis—have consistently recognized the central connection between marriage and responsible procreation and childrearing. This basic truth was commonly acknowledged until the recent movement to redefine marriage to include same-sex relationships made it fashionable to deny or obscure it.

The elementary biological reality that opposite-sex couples, as a class, have the capacity to procreate makes it eminently sensible that marriage has developed as a male-female union. To argue against the actual tradition of marriage by pointing out that infertile opposite-sex couples have been allowed to marry is simply to smuggle into the question a standard of strict-scrutiny review.

Further, as Prop 8 proponents make clear (Reply at 11-12):

More important, the overriding societal purpose of marriage is not to ensure that all marital unions produce children. Rather, it is to channel the presumptive procreative potential of opposite-sex relationships into enduring marital unions so that if any children are born, they will be more likely to be raised in stable family units by both their mothers and fathers. In other words, because society prefers married opposite-sex couples without children to children without married mothers and fathers, it encourages marriage for all (otherwise eligible) heterosexual relationships, including those relatively few that maynot produce offspring.

In addition, there are obvious and compelling reasons why the states have never undertaken to inquire into whether men and women seeking to marry each other will be fertile couples. These include basic privacy concerns against an intrusive Orwellian government. They also include the general indeterminacy of fertility.

As Justice Kagan observed, there will, of course, be some opposite-sex couples whose infertility together may safely be presumed. But to imagine that that fact cuts against the development of marriage as a male-female union is to subject marriage to a level of hyper-exacting scrutiny that can’t be justified. (Plus, as Chuck Cooper correctly pointed out—to the guffaws of snarkers like Dana Milbank who don’t even have the decency to fairly recount what he said—even for an aged couple it is very likely that the husband retains his fertility, and the marital norm of fidelity operates to help ensure that he doesn’t have children outside the marriage.)

For those who invoke the infertile-couple canard and who think that marriage is instead about government recognition of a loving relationship that the parties hope to be permanent: Note that  states also never inquire into whether couples seeking to marry in fact love each other. So don’t impose on marriage a test that your own reconception of it can’t meet.


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