Thursday, June 17, 2010

Marriage = Procreation?

We saw yesterday that the ENTIRE argument about marriage from the defenders of Prop8 is that marriage = procreation. That's what it's for, they claimed, and that's why same sex couples must be denied its recognition.

Nevermind the first utter FAIL in logic: we do not restrict marriage to the fertile, we do not require fecundity for marriage to continue. And of course, second, GLBT couples are busy raising kids: either from previous marriages, surrogates, or adoption. (I kept asking the supporters in the twitter feed,why do they hate my children?) There's also the third fallacy that somehow assumes that if GLBT people marry, straights will stop having children. The corollary to this is that if they block marriage, we will all become straight and/or give our children back. ????

We've rehearsed these arguments over and over. But do Americans really agree that Marriage = Procreation?

And the answer is, no. In the NY Times this week:, in a post entitled "Do Kids Still Matter to Marriage?"

A few years ago, the Pew Research Center released a survey called “What Makes Marriage Work?” Not surprisingly, fidelity ranked at the top of the nine-item list — 93 percent of respondents said faithfulness was essential to a good marriage.

But what about children? As an ingredient to a happy marriage, kids were far from essential, ranking eighth behind good sex, sharing chores, adequate income and a nice house, among other things. Only 41 percent of respondents said children were important to a happy marriage, down from 65 percent in 1990. The only thing less important to a happy marriage than children, the survey found, was whether a couple agreed on politics.
The writer goes on to quote the author of another study, Barbara Whitehead, who finds that the trend towards fewer children later is changing American marriage.
For most of the nation’s history, Americans expected to devote much of their adult lives to the nurture and rearing of children. Life with children has been central to norms of adulthood, marriage and the experience of family life. Today however, this historic pattern is changing. Life without children is becoming the more common social experience for a growing percentage of the adult population.
The Prop8 defenders are trying to blame same sex marriage for this change. The fact is, as is the case for divorce, the heterosexuals did this all themselves. The GLBT community is just a convenient scapegoat for those unhappy with changing times.

Update This op/ed offers a great quote:
All of this brings up a strange inconsistency to the opponents of same-sex marriage. Their ends -- every child gets a mom and a dad -- are strangely mismatched to their means -- prohibit same-sex marriage. It's sort of like banning bad moustaches to stop pornography. Perhaps there's some vague association, but that's about it.

Same-sex marriage isn't nearly the root of the problem, and we all know it. If it's really so important that every child gets a mom and a dad, then there is an obvious policy solution: prohibit divorce after childbirth. Of course, divorced parents are numerous and politically powerful, and it's always easier to scapegoat a minority.


Kevin K said...

As an attorney, I think you are miscomprehending the argument.

Under constitutional review, the lowest standard of review is a rational relationship. Unless the law improperly discriminates against a protected class, it is usually tested against the lowest standard.

This very low standard is designed to short circuit most challenges to the law. In part, because almost all laws, in some way, discriminate.

So the law must only have some rational relationship to some legitimate government interest. If it is either over inclusive, that is the law provides a benefit to those who do not directly advance the interest, or is under inclusive, that is does not include some whose presence would advance the interest, that does not render the law unconstitutional. That is, again, unless the discrimination is directed against a protected class.

The argument is that because only heterosexual sexual relationships can produce offspring, the state has a rational reason to encourage the formalization of these relationships through marriage. The fact that there is no limitation on fertility or intent to procreate would make the law over inclusive insofar as it applies to heterosexuals who marry and cannot or do not procreate. The fact that the law then excludes same sex couples who want to procreate and/or adopt would make laws limiting marriage to "opposite sex" couples underinclusive.

Unless gay/lesbians are recognized as a protected class the failure to extend marriage to same-sex couples would likely not be held to be unconstitutional under the rational relationship test.

Kevin K.

IT said...

I understand the "rational basis" argument but I'm not arguing the constitutionality, or the "rational basis-suspect class" issue, but the premise itself.

If you read the transcript, Cooper was saying over and over and over again, "The purpose of marriage is procreation". That is what I'm taking exception to.

He said that marriage was necessary to preserve the human race. As though people don't have sex outside of marriage.

It's clear (as Cooper himself admitted) that marriage is no longer "for" procreation. Therefore, arguing that marriage is defined by and limited to procreation is no longer an accurate assessment.

But back to your point, surely the state would have a "rational basis" in protecting the children of gay families? Only apparently they don't count.

Wonder why that is.

Paul (A.) said...

Kevin, 35% of same-sex couples in this country, married or not, raise children. So where's your rational basis?

On an unrelated point, I'm sure that my own children would be happy to know that, statistically at least, they rank behind "sharing chores".

wv = unspli
(almost united)

Kevin K said...


The fact that same sex couples raise children is not relevant to the constitutionality of Proposition 8 unless they fall within a protected class. The rational purpose is promoting procreation by encouraging heterosexual marriage.

This does not mean that there are not public policies which would support altering the definition of marriage. However, as long as the definition advances a rational state objective it is constitutional.

Dear IT

The idea that marriage is "for" procreation is a different point indeed.

I have not read the transcripts. I read enough of those at work. Mr. Cooper may be a poor advocate.

If I was representing the Proposition 8 side I would be arguing that the definition of marriage has a rational basis to a legitimate state interest and that gay persons are not a protected class and that, for those reasons, Proposition 8 is constitutional.

What you and Paul are advancing are public policies which would support extending marriage to same sex couples. The determination of sound public policies rest on the legislature or because of California's rather odd constitutional amendment system with a direct appeal to the electorate.

As Justice Holmes was fond of pointing out, legislatures can enact stupid or poorly constructed laws or inadequate laws. That does not invalidate the laws they enact nor does it allow courts to compel them to enact laws that are better and more rational. This power resides with the electorate and must be resolved through the political process.

Kevin K.

Erika Baker said...

"If I was representing the Proposition 8 side I would be arguing that the definition of marriage has a rational basis to a legitimate state interest and that gay persons are not a protected class and that, for those reasons, Proposition 8 is constitutional"

Would that then mean that the constitution would have to be amended to ensure that all children are included in a protected class and that therefore gay parents must be included too, and THEN prop 8 would finally be considered unconstitutional?

Because while I can just about see that the current legal situation as you explain it might be in favour of prop 8, it is manifestly out of date when there are thousands of children excluded from the same protection that other children's parent can obtain for them by marrying.
Surely, there would be a legal challenge that the reasoning itself is no longer constitutional?

Kevin K said...


I suppose you could amend the constitution to expressly identify children as a protected class. A protected class is a group which the Supreme Court has identified and requires that laws subjecting them to discrimination are subject to more stringent review. Generally this is because of because of factors such as being readily identifiable, historical prejudice and a lack of access to ballot protections. People of African American ancestory fit all these categories.

While children cannot vote their parents are generally considered to be their advocates. They have never been treated as a protected class.

The argument you close with is more of a choice of public policies rather than a constitutional defect. However, if it is any consolation. Constitutional jurisprudence is subject to change without notice.

Kevin K.

Paul (A.) said...

Kevin, you conflate procreation with child-rearing.

Procreation is not dependent on civil marriage, as many have noticed.

There is a difference between a rational basis and a false rationale.

Kevin K said...


I am not conflating at all. What I am saying is that under the de minis standards required for legislation to pass the rational relationship test, proposition 8 would probably pass.

The state interest identified is in encouraging marriage among couples that fall within the group of couples who can procreate. By encouraging men and women to marry the State can make it easier for these couples to raise children either before or after they procreate. The state can, but is not required, by the constitution, to extend marriage to same sex couples or group marriage.

Kevin K.,

Grant said...

I'm a few days behind on this, but I'm hoping to jump in on the tangent that Kevin K. brought up.

Kevin, your premise seems to me to be that Prop 8 is rationally related to furthering the state's interest in different-sex marriage. This is my take...

I would argue that on closer inspection of the language of Prop. 8 and the fact pattern from which it emerged, that the proposition is not merely about promoting different-sex marriage (DSM), but rather about disallowing same-sex marriage (SSM). It reads: Sec. 7.5. "Only marriage between a man and a woman is valid or recognized in California." If the proposition were merely intended to recognize DSM, there would be no need for the word "only." Clearly, the proposition is not merely intended to recognize and further DSM, but rather to eliminate any other marriage (SSM in particular). This position is further supported by the fact that the state recognized (and thus furthered its interest) DSM long before Prop. 8, and is supported further still by the fact that Prop. 8 was promoted and passed in direct response to the recognition of SSM. It seems exceedingly clear that the purpose of Prop. 8 is not merely to promote DSM, but rather to suppress SSM. So, if as you say, “state interest identified is in encouraging marriage among couples that fall within the group of couples who can procreate,” it must be demonstrated that denying SSM encourages DSM. Another way around would be to demonstrate that SSM somehow inhibits DSM. This, of course, is precisely what Prop. 8 supporters were not able to do at trial. Which is not surprising, because suppressing one thing is rarely a rational way to promote something else. In this case, an analogue would be promoting the birth of whippets by sterilizing weimaraners. In short, while I don’t think anyone argues that the state has an interest in encouraging DSM, it is not at all clear how that is rationally related to suppressing SSM.

I think you would be correct if Prop. 8 were merely intended to recognize DSM, but Prop. 8 is fully unnecessary for that. Thus, the purpose of Prop. 8 cannot be merely intended to recognize DSM. Indeed, it’s purpose is to suppress SSM, something in which to state has no interest, whether rational, compelling, or even mystical.

In my view, Prop. 8 doesn’t pass the rational basis test. But even if it did, it seems that it also deserves strict scrutiny because the group discriminated against is a textbook suspect class. That is unless the LGBT community is not discrete minority that has suffered a long history of prejudice, hostility and stigmatization based on an immutable trait that occurs so infrequently as to render to unable to protect themselves politically. Actually, come to think of it, isn’t sexual orientation already a suspect class in CA?

I’m hoping I’m not too late to get your thoughts on this, because I’m not an attorney! 