Gay Marriage and Procreation

Richard Dougherty doughr at udallas.edu
Tue Mar 16 15:13:33 PST 2004


Since Prof. Carpenter is apparently not on the list, it seems pointless to debate his argument, but I wonder if he is right
that "marriage continues to be the normative situs for
procreation."

Does anyone argue that procreation is the only reason for marriage, or the only one that would justify restricting it to
males and females?  I've never seen that argument.

That no attempt is made here to philosophically distinguish between accidental and a substantive differences surely
undermines the premises.

To respond to Eugene's regular and appropriate concern that posts be connected to con law, I guess I'll ask if this is
connected to con law.

Richard Dougherty

Mae Kuykendall wrote:

> 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._
>
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