Twenty-five older couples go to a state office building to request marriage licenses. They range in age from the late 40s to the late 80s. The first 24 couples hand the paperwork to the clerk, who issues each couple a marriage license, no questions asked. The 25th couple then hands the clerk their application. The clerk, without even looking at the form, tells the couple, "I'm sorry, I can't issue you a marriage license." The couple, visibly disappointed, asks why not. The clerk responds, "The purpose of marriage is to create a stable environment for raising children. You two obviously can't have children." The couple, now incredulous, replies, "None of the couples here today can have children. Why did you give them marriage licenses?"
Welcome to the world of older same-sex couples.
The marriage of an older man and an older woman is a frequent and joyous occasion. Each year, the states issue marriage licenses to about three-quarters of a million older people. Marriages involving a woman age 45 or older account for approximately 15 percent of all marriages. As the population continues to age, the number of marriages celebrated by older couples and the percentage of all marriages involving older couples are certain to increase.
For older opposite-sex couples, procreation is a virtual impossibility. Yet no state has ever sought to deny older straight couples the right to marry on the grounds that, because their unions will not lead to the birth of children, there is no "need" to grant them the privilege of marriage. To the contrary, many states have gone out of their way to allow older opposite-sex couples to marry. For example, a number of states allow first cousins to marry only if they are too old to procreate.
The states have good reason to allow heterosexual couples past their procreative years to marry. Marriage provides recognition, security, and mutual support. Marriage also creates legal obligations, such as those that require one spouse to contribute to the care and support of the other. As a result, married people tend to have lower rates of disease and disability than unmarried people. They also have lower rates of depression, substance abuse, and alcoholism. Because married people are healthier and happier, they tend to live longer than single people. One recent study estimated that married men tend to live eight to 17 years longer than single men, while married women tend to live seven to 15 years longer than single women. Married people also tend to be more prosperous than their unmarried peers. For example, married couples in their late 60s typically have almost 10 times as much in financial assets as single people in the same age group.
Marriage would provide the same benefits to same-sex couples that it provides to opposite-sex couples. Indeed, marriage could be even more beneficial for same-sex couples than it has been for heterosexual couples. Gays and lesbians tend to have higher rates of depression, poorer physical health, and, contrary to popular belief, lower incomes than their peers. Allowing same-sex couples to marry could improve these outcomes, just as it does for opposite-sex couples. Marriage also could help compensate for the fact that many gays and lesbians lack the social support network, especially children and extended families, that straight people rely on increasingly as they grow older.
Despite the substantial benefits that marriage provides, 13 states continue to refuse to issue licenses to same-sex couples. The fact that these states allow a substantial number of older opposite-sex couples to marry despite being incapable of procreation, while preventing same-sex couples from marrying because they are incapable of procreation, demonstrates that the states' "marriage is for procreation" argument is nothing more than a pretext for discrimination.
The Supreme Court will soon decide whether the Constitution requires every state to allow same-sex couples to marry. By striking down the remaining prohibitions, the Supreme Court will provide same-sex couples with access to the benefits that marriage has long provided to opposite-sex couples of all ages. As a result, married same-sex couples will have the opportunity as married opposite-sex couples to lead healthier, happier, longer, and more prosperous lives.
JACK NADLER is a partner in the Washington, D.C., office Squire Patton Boggs. He filed an amicus brief in the Supreme Court case on behalf of five organizations representing older Americans, led by Service and Advocacy for Gay, Lesbian, Bisexual, and Transgender Elders (SAGE).