On Procreation and Same-Sex Marriage
By William C. Mattison III, Ph.D.
Having taught marriage and sexuality to undergraduates for over ten years at four different Catholic universities, there are two things I have learned about college students’ perception of the current debate over legally-recognized same-sex marriage. First, students most often see this issue as one of equal rights, rather than a question of the substantive meaning of marriage. The most popular paradigm for understanding the contemporary case is a comparison to pre-civil rights laws banning interracial marriage. In that case, certain persons were unjustly barred from marrying the person of their choice. Students frequently see a similar dynamic at work in state prohibition of same-sex marriage. This assumption is also present in recent high level legal decisions in support of same-sex marriage. Second, the Catholic Church is losing the public debate on same-sex marriage. My students are far more receptive to the Church’s teaching on premarital sex than they are to the Catholic Church’s opposition to same-sex marriage. Those who are against same-sex civil marriage generally make, frankly, bad arguments against it. They speak vaguely about how heterosexual union is simply the “way it was meant to be.” Nearly ten years, ago, the first important State Supreme Court case in favor of same-sex marriage (Goodrich v. Massachusetts Department of Public Health) was decided. In the aftermath, the Chicago Tribune recorded Baptist minister Rev. Vernon Lyons’ reaction (5/18/04, A20): “Same-sex marriage is an oxymoron…. If we accept same-sex marriage, we may as well discard our rationality and accept square circles, dry rain, loud silence.” Surely Rev. Lyons, my students, and indeed all who oppose same-sex marriage must do better to explain why they hold this position. The failure to do so leaves same sex marriage supporters assuming there are no legitimate state reasons (even if there are religious reasons) to oppose same sex marriage.
This alleged failure of the Catholic Church to provide persuasive public arguments against homosexual marriage prompted a lively debate in Commonweal Magazine following the Goodrich decision (10/24/03). One of the participants, Paul Griffiths, argued that the Church should cease to engage the broader public in the debate over same-sex marriage, let civil law go its own way, and focus more on forming its own members in practices commensurate with the Church’s teaching on chastity. Again, the assumption here is that there are only intra-Church reasons for opposing same-sex marriage. Put differently, the assumption is that the intra-Church reasons to limit marriage to opposite sex couples are not applicable outside the Church.
In response to both those students unable to articulate good reasons against civil marriage for homosexuals, and those (like Griffiths) who claim that same-sex marriage should be legalized on the basis of an “empirically obvious” lack of public arguments against it, this essay examines possible state reasons for recognizing or prohibiting civil marriage for homosexual couples, primarily relying upon arguments from different members of the Massachusetts Supreme Court in the groundbreaking Goodrich case (though relying on several more recent cases where appropriate). A review of these decisions reveals that there is quite a substantive exchange occurring over the state interests in recognizing marriage. (The term “state interests” is used here to indicate legitimate governmental interests, be they at the federal or state level.) Two clear opposing positions have emerged. In line with this issue of The Crosier, the key distinction between these views is the extent to which procreation is a legitimate state interest in regulating marriage. In this essay I attempt to argue that there are legitimate and indeed more persuasive state reasons to limit marriage to opposite sex couples, based on the importance of procreation. Indeed such a state purpose is not only legitimate and important (with the man and woman proxy meeting the rational basis requirement), but the state interest in procreation as driving marriage is the only thing that makes sense of marriage law as it stands. Procreation, in other words, is why the state is involved in marriage.A Question of Equal Rights?
Some of the benefits conferred by the state on people in a married relationship include income and estate tax benefits, and transferable (upon death of spouse) Social Security benefits. The highly publicized 2012 U.S. Supreme Court case that supported same-sex marriage, United States v. Windsor, repeatedly claims that there are over 1,000 federal statues alone implicated by who is eligible to marry. Other benefits are not conferred directly by the state, but by certain institutions based upon the state’s recognition of the marriage relationship, such as health insurance, bereavement policies, and hospital visitation rights. As currently debated in the public forum, same-sex marriage is simply a matter of equal rights. Heterosexual couples receive certain benefits from state recognition, same-sex couples do not, and thus there seems to be an arbitrary offense against equal rights on the part of the state.
The Massachusetts Supreme Court affirmed this line of thinking in its 4-3 decision to allow same-sex marriage in Massachusetts. Chief Justice Marshall writes that the state of Massachusetts failed to “identify any constitutionally adequate reason for denying civil marriage to same-sex couples.” Such exclusion is not compatible, she claims, with Massachusetts’ principle of “equity under law.” The state cannot be “arbitrary” or “capricious” in its legislation. The Court is responsible for assuring that “laws will apply equally to persons in similar situations.”
The key question then becomes, what constitutes similar situations? In order to determine which features of a relationship qualify it for civilly-recognized marriage, we must identify the state’s purpose in recognizing marriage in the first place. Why does the state recognize marriage? The majority ruling notes that marriage as recognized by Massachusetts law is a civil affair. “Civil marriage anchors an ordered society by encouraging stable relationships over transient ones. It is central to the way the Commonwealth identifies individuals, provides for the orderly distribution of property, ensures that children and adults are cared for and supported wherever possible from private rather than public funds, and tracks important epidemiological and demographic data.” Chief Justice Marshall goes on to note that a lower court judge endorsed the state position that “marriage’s primary purpose is procreation.” But she replies, “This is incorrect…. [I]t is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of marriage.” Marshall argues that the “marriage for procreation” position “singles out the one unbridgeable difference between same-sex and opposite sex couples, and transforms that difference into the essence of legal marriage.” Theruling concludes with the authoritative, “We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others.” One of the most extraordinary things about this legal debate is that it centers on the procreativity of marriage. Chief Justice Marshall is correct that begetting children is not the sine qua non of marriage. A couple can of course be legitimately married without children. Even the Catholic Church which has always recognized procreation as an inherent end or good of marriage agrees with this. But recognizing this fact does not render the procreativity of marriage as accidental, or irrelevant, as Marshall suggests. The question must be asked, why does the state formally recognize “the exclusive and permanent commitment of the marriage partners to one another” in the first place?Frank and Rick
Two problems with Chief Justice Marshall’s position are examined here. The first is, if Chief Justice Marshall’s view of the state interest in marriage is correct, why should civil marriage be limited to opposite sex and same -sex couples? Why can’t any two (or more) consenting adults who wish to establish a stable household have that relationship recognized? Consider a probable future court case that will help us determine whether current marriage law is a violation of equal rights. Frank and Rick are unmarried (heterosexual) best friends who share a home and have a loving, committed friendship which they both plan to maintain indefinitely. For the purposes of stability, and to gain certain benefits accorded to married persons, Frank and Rick wish to have their union recognized by the state. Their relationship involves close emotional bonds, shared financial endeavors, even common living arrangements. Under current marriage law, Frank and Rick are treated no differently than the committed homosexual couple.
The question is, should the benefits now accorded to married couples be accorded to Frank and Rick? I imagine most people would say that that Frank should receive neither Rick’s extended health benefits, nor his Social Security pension upon Rick’s death. I presume most people think Frank and Rick should neither share tax benefits, nor receive any civilly mandated bereavement policy (although we hope an employer would be sympathetic in such a situation). But the question is, why not? Their relationship shares many features of state-recognized marriage: a common household, close emotional attachments, stability, and consensual (albeit non-sexual) exclusivity. Marshall’s “sine qua non” features of marriage – exclusivity and permanence – are indeed present.
If the state were to accord the same-sex couple the benefits of civil marriage, on what basis would they be denied to Rick and Frank? On the basis of intimacy and emotional attachment? Adjudicating emotional intimacy hardly seems a state interest. The state does not even ascertain this with regard to heterosexual marriage! And are we really ready to label the other relationship less intimate? Is the state in the business of recognizing sexual relationships as an end in itself? It would seem not, since the law does not attempt to acknowledge non-married sexual relationships. The burden of the case for civilly recognized same-sex marriage is distinguishing same-sex unions from people in other committed relationships who might seek state recognition of their relationships in pursuit of benefits associated with marriage. In other words, why should the state draw a “marriage line” with homosexual and heterosexual couples on one side, and other committed relationships on the other? A failure to explain the rationale for this line on the part of same-sex union advocates is, ironically, a denial of Frank and Rick’s rights. According to Chief Justice Marshall’s reasoning for the state purpose of marriage, “equity under law” seems to demand that not only heterosexual and homosexual couples, but any two persons, must be able to enter into a permanent and exclusive state-recognized marriage.
An alternative proposal concerning legal recognition of same-sex couples is the establishment of “legal unions.” This would serve two purposes. First, it would affirm the distinctiveness of heterosexual marriage, for which the legal term “marriage” is reserved. Second, it would accord same sex couples certain rights that they are denied under current marriage law. The state thus draws one line (marriage) between heterosexual and homosexual couples, and another line (civil union) between homosexual couples and relationships like that of Frank and Rick. This solution attracts many as a sort of compromise. Yet it angers advocates of homosexual marriage who say it does not go far enough since it fails to equate heterosexual marriage and homosexual unions.
In any case, the rational basis on which some people would have their relationship civilly-recognized – and others would not – should be clearly articulated in a manner tied to the further state interest in such recognition.What is the “sine qua non” of Marriage?
Is there a similar burden on opponents of same-sex marriage to distinguish heterosexual couples from homosexual couples? Historically speaking there has been no such burden, and that is why current marriage law stands as it does. But today this marriage line is being questioned, and thus a rationale for it needs to be articulated. In the absence of such a publicly articulated rationale, my students and Rev. Lyons are unable to explain to others the reasoning behind their intuition that same sex marriage is not the same as heterosexual marriage.
In his dissenting opinion in the Goodrich case, Justice Robert Cordy, agrees with Chief Justice Marshall on one thing: Massachusetts marriage laws are “enacted to secure public interests and not for religious purposes.” Yet Justice Cordy has a different opinion of what those interests are. “Paramount among its many important functions, the institution of marriage has systematically provided for the regulation of heterosexual behavior, brought order to the resulting procreation, and ensured a stable family structure in which children will be reared, educated, and socialized.” Though he recognizes other “important” facets of marriage such as its “expressions of emotional support and public commitment,” “those features are not the source of the fundamental right to marry.”
Cordy focuses on procreation as the distinguishing feature of heterosexual marriage. “It is difficult to imagine a state purpose more important and legitimate than ensuring, promoting, and supporting an optimal social structure within which to bear and raise children. In fact, Cordy goes so far as to say that marriage is indeed a “fundamental right”, but that this right derives from “the underlying interest of every individual in procreation.”
Justice Cordy thus provides a public rationale for why heterosexual couples may be accorded marriage privileges and homosexual couples may not. He finds it eminently rational for a Legislature to conclude that “continuing to limit the institution of civil marriage to members ofthe opposite sex furthers the [state’s] legitimate purpose of ensuring, promoting, and supporting an optimal social setting for the bearing and raising of children.”
How could Cordy reasonably claim that the state’s interest in recognizing marriage rests on its interest in procreation? Is procreation the basi s of civil marriage? What about cases where marriage is not a milieu for having children? There are the cases of infertile couples, and those with no intention of having children.
Cordy acknowledges that “heterosexual intercourse, procreation, and child care are not necessarily conjoined (particularly in the modern age of widespread effective contraception and supportive social welfare programs).” Nevertheless he claims that: “an orderly society requires some mechanism for coping with the fact that sexual intercourse commonly results in pregnancy and childbirth. The institution of marriage is that mechanism.” He goes on to say that this institution should be legally available “as long as procreation is theoretically possible.” This possibility holds true for opposite-sex, and not same-sex, couples. “Because same-sex couples are unable to procreate on their own, any right to marriage they possess cannot be based on their interest in procreation, which has been essential to the [United States] Supreme Court’s denomination of the right to marry as fundamental.”
One case that initially seems to strain Cordy’s line of argument is that of adoptive parents. If civil marriage law promotes the bearing and raising of children, what of adoptive parents? There is indeed a state response to adoption in the form of legal guardianship. Our legal system acknowledges adoption by non-married persons. In all states a person or couple can adopt a child. In all cases, a legal guardian is named. In a growing number of states, second parent adoption laws grant legal parent status to the first parent’s companion. (These laws apply both to homosexual and heterosexual couples).
At closer glance, these adoption laws re-affirm Cordy’s claim that state interest in children actually drives marriage law. If the state recognizes second parent adoption rights and any concomitant privileges (taxes, etc.) for non-married adoptive parents, note that (for either heterosexual or homosexual couples) it is the adoption of the child, and not the relationship per se, which engenders those privileges. The state is in effect recognizing two parents, not recognizing a relationship that is itself oriented toward parenthood.
In the case of the heterosexual couple who marries, the state recognizes a tendency toward children that is not acknowledged in non-married heterosexuals because of the lack of the latter’s publicly stated intent to commit. In the case of the same-sex couple, there may be a willingness to publicly commit, but the state has no interest in recognizing this couple on the basis of a tendency toward children since the relationship per se is not oriented toward the bearing of children in the manner a heterosexual marriage is. Of course the same-sex couple may become adoptive parents. But as in the case of non-married heterosexual adoptive parents, it is the adoption of a child that places the same-sex couple’s relationship within the purview of state interest, rather than the relationship itself.
As for the infertile couple, or the couple not intending to have children, it seems these cases are indeed outside the scope of what Cordy identifies as the basis of the fundamental right to marry(for more on infertile opposite sex couples and those who have no intent to have children see Justice Zarella’s dissent in the 2008 Kerrigan case in Connecticut, mentioned below). Could such circumstances be readily ascertained (in the manner of the state-required blood test preceding marriage), Cordy might concede that this would indeed impact marriage law. But the law is often an instrument whose precision does not adequately match its intent. To more finely hone this law would require either declarations of intent to have children or accurate medical determinations of fertility. The prospect of these policies makes it clear why the law is left at the level of generality it is.
Cordy’s argument that the state’s involvement in the “marriage business” is ultimately about children does not mean that heterosexual marriage always entails children. Nor does it mean that children can only be born and well-raised in this milieu. It merely meets the burden of explaining why the state has a rational basis upon which to accord privileges to heterosexual marriage based upon the nature of that relationship.
The position articulated here, namely, that the state purpose in recognizing civil marriage is ultimately procreation, is susceptible to one further objection. Why should the state recognize marriage at all? Why not simply wait until individuals or couples, homosexual or heterosexual, become parents? This would actually be a far more interesting public debate. It would center on not only whether the state has any interest in providing stability and order in households where there are children, but also whether or not the state has any interest in encouraging the having of children, and whether civil recognition of marriage does that. In his dissenting opinion in the 2008 Connecticut case Kerrigan v. Commissioner of Public Health supporting same-sex marriage, Justice Zarella argues that the state interest in procreation includes not only protection of children but also the recognition of relationships that produce children. Cordy says something similar about the pedagogical function of civil marriage. Through such law, “society is able to communicate a consistent message to its citizens that marriage is a (normatively) necessary part of their procreative endeavor; that if they are to procreate, then society has endorsed the institution of marriage as the environment for it and for the subsequent rearing of their children; and that benefits are available explicitly to create a supportive and conducive atmosphere for those purposes.” The law thus serves an educative function.
Cordy’s claims about the fundamental right to marry deriving from the state interest in procreation are valid public arguments that are too infrequently raised in the contemporary debates over civil recognition of same-sex unions. Opponents of same-sex marriage generally fail to provide persuasive public arguments for their position. Proponents make facile claims about equal rights without attending to the denial of equal rights that gay marriage entails for people like Frank and Rick. They also fail to recognize the more substantive claims about the nature of marriage that their position entails. Yet such substantive claims about the meaning of marriage, whether for or against legally-recognized same sex unions, are readily available in the public forum, as in the various opinions of the Massachusetts Supreme Court and other Courts on this issue. Before following Griffiths out of the public debate on this issue, the competing visions of marriage driving different positions on civilly-recognized same sex unions must be brought to the surface and evaluated. Our discussions over who should have their relationship recognized by the state must explicitly attend to the question of why the state is in the “marriage business” in the first place.