Responsible Procreation: The Best Justification for Denying Marriage to Same-Sex Couples?

One of the maxims in our legal education is that there are two sides of the coin to almost every argument. I thought the arguments against marriage between same-sex couples would be the same; I was wrong.

One of the maxims in our legal education is that there are two sides of the coin to almost every argument. Law school has demonstrated that this cliché is fairly well-supported. Even if you strongly favor one side of an argument you are usually able to understand the basic legal reasoning from the arguments on the other side. I thought the arguments against marriage between same-sex couples would be the same; I was wrong.

State and Federal laws limiting marriage to only a man and a woman, or to put it in the less politically correct way, laws banning “gay marriage,” have been challenged left and right in recent years. Despite some wins for proponents of same-sex marriage, courts have shot down most of the challenges to these marriage bans. The federal gay marriage ban, known as DOMA (Defense of Marriage Act1), is still in effect (despite the Obama administration’s refusal to defend it2), and the various state bans, such as Proposition 8, are still operating in 41 states.3

So what is the killer argument being used to consistently uphold these gay marriage bans? It is called “Responsible Procreation.” The basic outline of the argument, adapted from the summary given by Judge Von Walker of the District Court for Northern California,4 is as follows: Married households provide the most stable environment for raising children and it is therefore critical to encourage heterosexual people, who are capable of procreating accidentally, to raise their children within a marriage. By providing thousands of various governmental benefits, the institution of marriage helps encourage heterosexual couples to responsibly procreate. “Because same-sex couples’ sexual activity does not lead to procreation, according to proponents, the state has no interest in encouraging their sexual activity to occur within a stable marriage.”5

It is difficult to read this argument without rolling your eyes because it seems to clearly beat around the bush. It is hard to believe that this logic was used when the various laws banning same-sex marriage were first enacted. Surely it was more about not being comfortable with homosexuality. But, in the post Lawrence v. Texas 6 world, purely moral justifications for discrimination were found unconstitutional, thus forcing same-sex marriage ban proponents to get more creative. Responsible procreation is surely one of these new creations, particularly because the argument doesn’t involve pointing the finger at gays and lesbians with moral disapproval. Rather it uses reasoning that sounds similar to the classic break-up line ‘It’s not you, it’s me.’ “It’s not you, gay people, it’s us, the straight people. We’re the irresponsible ones. You’re too good for marriage.” Anyone who has ever used this line knows what the phrase really means. Despite the initial eye rolling, the responsible procreation justification has found overwhelming support in the state courts and is also the major argument currently being used in the federal courts to defend California’s Proposition 87 in the 9th Circuit Court of Appeals.

The constitutional arguments brought by the various same-sex marriage plaintiffs usually involve challenges under the equal protection clause of the 14th Amendment. Since most courts have found that sexual orientation does not constitute a suspect class, most challenges are scrutinized under a rational basis test. Rational basis, of course, has two ends to its spectrum: one involving an extremely deferential review and the other involving a more searching review, often referred to as ‘rational basis with bite.’ Analyzing the responsible procreation justification under rational basis is where the major battle lies for both sides.

Courts finding that the marriage bans meet rational basis usually use the weaker version and find that the responsible procreation justification satisfies the test. This is especially true because the fit does not need to be a perfect one under this version of rational basis. The marriage bans, according to the responsible procreation justification, are not aimed at harming gays and lesbians and serve a legitimate government interest: promoting stable households for children. But, not all the courts are buying this argument.

Federal courts in Massachusetts and California, have rejected the responsible procreation argument. 8 They have all generally held that denying gays and lesbians the ability to marry is not at all related to the goal of family stability espoused by the responsible procreation justification. They argue that it is difficult to imagine that the number of straight people deciding whether or not to procreate within a marriage will be affected by denying gay people the ability to marry. Even assuming teenagers and young adults actually consider the tax benefits of marriage before they decide to procreate, arguing that their decision-making is affected by the admission or denial of gays is so far removed from the justification that it cannot even meet the most deferential rational basis review. The stated objective of responsible procreation to create more stable homes for families comes only at the expense of gay people and their children. Not only are gay people labeled as not being good enough for marriage, they are denied some of the major tax and governmental benefits that could actually help stabilize their households too.

Maybe I am missing something with the responsible procreation argument, but from what I have gathered, the argument is simply a cloak for good old-fashioned discrimination. Inevitably this issue will be brought all the way up to the Supreme Court and it will be interesting to see what the Court does with the argument. If they buy it too, my faith in the law will be dealt a heavy blow.

1 1 U.S.C.A. § 7
2 http://www.cbsnews.com/8301-504564_162-20035495-504564.html
3 http://www.lgbtmap.org/equality-maps/marriage_relationship_laws
4 Perry v. Schwarzenegger, 704 F.Supp.2d 921, 932 (N.D. CA 2010)
5 Id.
6 Lawrence v. Texas, 539 U.S. 558, 571 (2003) (holding a Texas state sodomy statute as unconstitutional under the substantive due process clause of the 14th Amendment)
7 Cal. Const. Art. I, § 7.5 (a 2008 California voter initiative that changed the state constitution to provide: “Only marriage between a man and a woman is valid or recognized in California.”)
8 Id. at 1000, Gill v Office of Personnel Management, 699 F.Supp.2d 374, 389 (D. Mass. 2010).