Gay Marriage and Procreation

[Mae Kuykendall]

Professor Dale Carpenter of the University of Minnesota Law School
asked that I post this column on Gay Marriage and Procreation.

Mae Kuykendall

OutRight	
By Dale Carpenter
March 18, 2004
Gay Marriage and Procreation

A common argument against gay marriage is that marriage is for
procreation and gay couples cannot procreate. Let's call it the
procreationist argument. Is it persuasive?

The procreationist argument starts with the indisputable proposition
that procreation is indispensable to human survival. It then posits
that
marriage exists to encourage this indispensable act to occur within a
lasting union. The procreationist may concede that marriage has other
purposes, for example, providing the married person with a primary
caretaker and channeling sexual activity into monogamous commitments. 
Still, the procreationist maintains, these other purposes serve mainly
to help sustain the overarching marital purpose of encouraging
procreation and stabilizing family life for the resulting children.

Individual gay persons can procreate, of course, through means such as
artificial insemination and surrogacy arrangements. But gay couples,
note the procreationists, cannot procreate _as a couple_. The
distinction is important, they say, because parents tend to give better
care to biological children than to adopted children. Further, no event
helps the durability of a relationship like the birth of the couple's
biological child.

According to the procreationist argument, it is the unique procreative
capacity of male-female couples that justifies the unique status of
marriage itself.  It is the one essential attribute of marriage,
supplying
its historic male-female definition.

But so what? What are the practical consequences of cutting the
marriage-procreation connection? I can think of two possible fears.
One
fear is that procreation itself would slow down, perhaps below the
"replacement rate," the level at which humans must reproduce in
order to stay ahead of deaths. This slowdown would imperil the species.
The other fear is that, as the connection between marriage and
procreation is loosened, procreation may increasingly occur outside of
marriage. Both at once could happen, and both would be bad.

What do we make of this argument? If gay marriage would doom human life
on Earth and/or mean significantly more illegitimate children, it should
be resisted no matter how much gay couples need it. 

But neither of these consequences seems likely. It's not clear why
straight people would stop procreating if gays could marry. The factors
driving people to reproduce - - the needs for love and to love another,
the purported instinct to propagate one's genes, religious obligations
- -
would still exist if Adam and Steve could marry.  

It's also not clear why gay marriage would drive more straight
couples to reproduce outside marriage. The benefits of marital
procreation would still be available to them, after all. The problems of
non-marital procreation would still be there to discourage it. 

But fortunately we do not have to guess at the probability of these
cataclysmic consequences because we already have much experience with
severing the link between marriage and procreation.

No couple has ever been required to procreate in order to marry. No
couple has ever even been required _to be able to procreate_ in order to
marry.  Sterile couples and old couples can marry. Couples physically
able to procreate but who do not want to procreate can get married. 

Many married opposite-sex couples already fit into one of these
non-procreative categories. They are a larger segment of the population
by far than gay married couples ever would be. Yet despite this inherent
or explicit rejection of the procreative marital duty, humans continue
to procreate and marriage continues to be the normative situs for
procreation.

The procreationists have two responses to the non-procreative-couples
argument. First, they say laws are made for the general rule, not the
exceptions. Most opposite-sex couples can reproduce, but no gay couple
can.  Second, the failure to require married couples to procreate is
only a concession to the impracticality and intrusiveness of imposing a
procreation requirement. It is not an abandonment of the procreation
principle. It would be unthinkable, on privacy grounds alone, to
subject
couples to fertility tests as a requirement for marriage. We need no
such intrusive test to know gay couples can't reproduce, the
procreationists observe.

The first response is an evasion. Laws often state general rules but
provide exceptions where appropriate and just. Gay marriage, like
non-procreative straight marriage, is an appropriate and just exception
to the procreationists' rule that marriage exists for procreation.

The second response is equally unavailing. If we were serious about the
procreationist project, we could require prospective married couples to
sign an affidavit stating they are able to procreate and intend to
procreate. If in, say, ten years they had not procreated we could
presume they are either unable or unwilling to do so and could dissolve
the marriage as unworthy of the unique institution. 

That would be neither impractical nor require an invasive fertility
test.
That no one has proposed it, or anything like it, suggests we do not
take the narrow procreationist vision of marriage very seriously.
Marriage is not _essentially_ about procreation because procreation is
not essential to any marriage.

Further, this second response suggests that the general rule of
procreation must bend to the overriding  needs and interests of couples
unable or unwilling to live by it. If that exception exists for
non-procreative straight couples, why not for non-procreative gay
couples? If there is an answer to this question, it cannot be found in
the procreationist argument.

So the procreationist rule, refined in light of actual lived
experience, is
this: Nobody is required to procreate in order to marry, except gay
couples. It's a rule made to reach a predetermined conclusion, not
for good reasons.

_Dale Carpenter is a law professor.  He can be reached at
OutRight at aol.com.
 Some of his past columns can be read at www.indegayforum.com._