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Sunday, February 03, 2013

Marriage: Because only straight people can get knocked up

This story from the LA Times is a week old, but it describes part of the argument in the briefs defending the prohibition on same-sex marriage (as to both Prop 8 and DOMA), roughly as follows: Marriage is a unique institution necessary to handle unintended and unplanned pregnancies and to ensure that "irresponsible procreation" does not become a burden or drain on society. While same-sex couples only reproduce through careful advance planning, heterosexual couples can, and often do, reproduce carelessly and unintentionally. In other words, marriage is for straight people because only straight people can get knocked up or can knock someone up.

I have not read the briefs and I probably should know better than to rely on MSM reports of a legal brief, but is that really part, much less the core, of the argument? Is there more to the argument that the story omits? We have gone--seemingly in the space of this one litigation--from marriage as a sacred institution needing preservation from those who would defile it to marriage as a way to handle irresponsible-but-fertile fornicators. On this argument, marriage is intended for the very people who probably should not be together.

(H/T on both the Times story and the title from my colleage Tracy Pearl).


Posted by Howard Wasserman on February 3, 2013 at 02:07 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


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Another, even less availing, argument they make is essentially: the constitution shouldn't guarantee equal protection because people voted on it. Which is even more absurd than this argument.

Posted by: Ben | Feb 3, 2013 2:26:06 PM

The term "irresponsible reproduction" is redundant. In these decades characterized by depletion of natural resources, global warming and species extinction, all reproduction by humans is irresponsible.

Of course, you get big tax deductions in the USSA for acting irresponsibly.

Posted by: Jimbino | Feb 3, 2013 3:17:14 PM

Yes, this is the gist of the argument. It is getting a lot of press as a novel argument, but it is almost identical to the argument that won in the Hernandez v. Roblez, the New York opinion upholding the traditional definition of marriage on rational basis grounds in 2006 (before the NY legislature amended the statute to allow same-sex marriage).

Posted by: Wondering | Feb 3, 2013 3:32:26 PM

As Wondering mentions, this was indeed the linchpin of the New York Court of Appeals' opinion, written by Judge Robert Smith. I know Bob Smith from my Paul, Weiss days. Brilliant guy. And I remember thinking at the time: "Well, if that's the best HE can come up with, there really isn't much to justify these laws."

Posted by: Michael J.Z. Mannheimer | Feb 3, 2013 9:20:34 PM

And, the NY case involved a longstanding marriage law, not a law from the late 1990s that specifically targeted same sex marriages, and in this case still involves the couples in question having state benefits.

The dissent in the NY case cited is also recommended, including how blocking SSM harms the children in same sex families, including in ways that "burden or drain society," some children apparently more worthy of protection than others.

Posted by: Joe | Feb 4, 2013 11:16:14 AM

For an excellent scholarly discussion of this arguments and its problems, see Kerry Abrams and Peter Brooks, Marriage as a Message: Same-Sex Couples and the Rhetoric of Accidental Procreation, 21 YALE JOURNAL OF LAW & HUMANITIES 1 (2009).

Posted by: I. Glenn Cohen | Feb 4, 2013 11:21:37 PM

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