Those who
advocate that marriage should be reserved purely for the
purpose of procreation have argued themselves into a corner.
If they truly want that as a standard, then it should
apply it to everyone.
When a California
appellate court heard arguments about the state’s ban
on same-sex marriage this week, attorneys argued a tired
mantra long championed by same-sex marriage opponents:
Gays should not be allowed to marry because they
can’t procreate (at least not naturally). No matter
that California superior court judge Richard Kramer
dismissed that claim in 2005, finding the ban on
same-sex marriage unconstitutional. Kramer noted that
opposite-sex couples don’t have to have children in
order to marry, while gay families are blocked from
the institution no matter how many children they have
or might produce.
An ability to
procreate, therefore, was not germane to the argument.
But that
didn’t stop California deputy attorney general
Christopher Kreuger from recently making it again. It
was also one of the arguments that led to New
York’s supreme court to rule against same-sex
marriage a week ago, and has been used in a number of
other same-sex-marriage-related cases across the
country.
Clearly,
procreation is top-of-mind when marriage comes up before the
courts. At least same-sex marriage. That got me to thinking.
If our legal
system consistently asserts that the fundamental purpose of
marriage is procreation, then shouldn’t it apply to
all marriages equally, no matter the sex of the
persons involved? After all, fair is fair. Any smart
lawyer could make that case.
But a consistent
application would have some unintended consequences. It
would automatically:
* Nullify the
marriages of about 10% of opposite-sex couples in this
country. That’s the percentage of couples that want
kids but can’t get pregnant. Some of those seek
out infertility treatments if they can afford to do
so, but one could argue that since those treatments
aren’t “natural,” the procreation
standard does not apply.
* Nullify the
marriages of opposite-sex couples that have no desire or
intention to have children. American Demographics magazine
estimates that the number of childless couples in the
U.S. will reach 31 million by 2010. A decision to
marry based on the legal protections of marriage, like
Social Security benefits, the ability to make medical
decisions, inheritance rights, etc., would not be
compelling enough.
* Nullify the
second (or third) marriages of households where one of the
partners has children by a previous marriage and has decided
not to have a child with their current spouse.
According to the 2000 census, there are about 1.5
million American stepfamilies in that situation.
* Nullify
marriages where the only children in the household are
adopted, not “naturally” created by the
household parents. With procreation as the standard,
kids created by other people don’t count. That would
eliminate another 816,000 couples, based on the 2000
census.
* Nullify the
marriages of seniors who marry when procreation is nothing
but a cherished memory. While there’s no reliable
data available about the number of postmenopausal
newlyweds, one shocking bit of evidence has surfaced:
Over 20% of unmarried couples living together qualify as
AARP members. They’ve chosen to shack up in
their golden years.
Clearly, a lot of
otherwise happy marriages might be eliminated under
this standard. But the question is, Do Americans really
think marriage is primarily about procreation? I
don’t think so.
Nearly two thirds
of married men interviewed in a 2004 Rutgers University
study, “The State of Our Unions: The Social Health of
Marriage in America,” claimed readiness to have
children didn’t figure prominently in their
decision to marry. Just 35% believed “you get married
because you were ready to have children.” That
tracks with a 1999 General Social Survey social change
report conducted by the University of Chicago, “The
Emerging 21st Century American Family”: Nearly 70% of
Americans indicate they do not believe the main
purpose of marriage is to have children.
In spite of this
overwhelming majority, extremists continue to make the
procreation argument, sometimes with reasoning that borders
on the absurd. Ken McElroy, a vocal procreation
proponent, trips over himself in an essay in the
American Federalist Journal: “We make laws
based on the rule, not the exception. There is no
reasonable way for the government to discern when a
male-female couple applies for a marriage license
whether that couple will bear children in the
future.”
It’s the
proverbial catch-22. Procreation is the driving guideline
for marriage, but the state can’t determine if
every couple’s future is fertile. Even so, the
impetus for procreation requires some baseline
qualifier; a perfunctory physical once-over is sufficient to
allow heterosexual couples to marry. A low sperm count
or endometriosis be damned.
McElroy and his
cronies have argued themselves into a corner. It’s
time they admitted what the rest of us figured out
long ago. The arguments to deny same-sex couples the
rights and responsibilities afforded to opposite-sex
couples are, at their core, expressions of prejudice, pure
and simple.
They should admit
that and get on with it—or agree that the only truly
fair way to deal with the issue is to apply their standard
to every couple, gay or straight, equally and without
prejudice or favor.
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Sonego is a writer, AIDS advocate, and former staff
member for the Gay and Lesbian Alliance Against
Defamation. He is currently raising four children
with his partner, Michael, in Los Angeles.