Marriage, Biology, and Federal Benefits

AuthorCourtney G. Joslin
PositionProfessor of Law, University of California at Davis
Pages1467-1515
1467
Marriage, Biology, and Federal Benefits
Courtney G. Joslin
ABSTRACT: This Article approaches the topic of same-sex marriage from a
novel perspective by scrutinizing the historical accuracy of the primary
defense proffered by same-sex marriage opponents—“responsible
procreation.” In the context of challenges to Section 3 of the Defense of
Marriage Act (“DOMA”), responsible procreation posits that the federal
government’s historic purpose in extending marital benefits is to promote
and specially support families with biologically related children. Because
same-sex couples are unable to have children who are biologically related to
both parents, the argument continues, it is permissible to deny them all of
the federal marital rights and obligations. While advocates disagree about
whether and to what extent DOMA furthers this alleged federal interest, to
date, all sides have accepted the validity of responsible procreation’s
historical underpinning.
This Article is the first to interrogat e that historical foundation. In doing
so, this Article examines two of the largest and most widely relied-upon
federal benefits programs—Social Security benefits and benefits for active
and retired members of the U.S. military. This analysis demonstrates that
Congress has not and does not condition the receipt of federal family-based
benefits on biological parent–child relationships. To the contrary, Congress
long has implicitly and explicitly extended such benefits to families with
children known to be biologically unrelated to one or both of their parents.
Responsible procreation garners its strength from its purported
foundation in long-standing history and tradition. This Article, however,
reveals that responsible procreation is based on a mythical story that greatly
Professor of Law, University of California at Davis. I thank Afra Afsharipour, Mary
Bonauto, Mary Pat Byrn, Stewart Chang, Kristin Collins, Katherine Florey, Cynthia Godsoe,
Meredith Harbach, Joan Hollinger, Suzanne Kim, Solangel Maldonado, Shannon Minter, Doug
NeJaime, Rachel Rebouché, Kate Silbaugh, Ed Stein, and Zvi Triger. This Article benefited
from discussions at the Emerging Family Law Scholars & Teachers Conference at Fordham Law
School. Thanks are also due to UC Davis law librarian Erin Murphy and to my research
assistants Atticus Lee, Zachary Ray, and James Schlinger. I am grateful to the UC Davis School
of Law, particularly Dean Kevin Johnson and Associate Dean Vikram Amar, for providing
generous financial support for this project. Finally, I thank Joe Fraioli and the other editors at
the Iowa Law Review for their careful editorial assistance.
1468 IOWA LAW REVIEW [Vol. 98:1467
oversimplifies the history and tradition of federal family-based benefits in the
United States.
I. INTRODUCTION .................................................................................... 1469
II. BIOLOGICAL PRIMACY: THE CLAIM ...................................................... 1476
A. SAME-SEX MARRIAGE AND BIOLOGICAL PRIMACY ............................. 1476
B. DOMA AND BIOLOGICAL PRIMACY ................................................. 1477
1. The “Accidental Procreation” Approach ............................ 1479
2. The “Biological Preferentialism” Approach ....................... 1480
3. Reliance on History and Tradition ..................................... 1481
C. OTHER EXAMPLES OF BIOLOGICAL PRIMACY .................................... 1482
III. FEDERAL BENEFITS AND BIOLOGY ........................................................ 1483
A. SOCIAL SECURITY BENEFITS ............................................................ 1485
1. Family-Based Benefits: An Overview ................................... 1485
2. Children’s Eligibility ............................................................ 1487
a. State Family Law and Biology ........................................... 1488
b. Stepchildren and Adopted Children ................................... 1495
3. Dependency, Not Biology .................................................... 1496
B. FEDERAL MILITARY BENEFITS ......................................................... 1499
1. Family-Based Benefits: An Overview ................................... 1499
2. Children’s Eligibility ............................................................ 1502
3. Dependency, Not Biology .................................................... 1508
IV. RESPONSIBLE PROCREATION: THE MYTH ............................................. 1510
V. CONCLUSION ....................................................................................... 1515
2013] MARRIAGE, BIOLOGY, AND FEDERAL BENEFITS 1469
I. INTRODUCTION
Much has been written about same-sex marriage. As I have discussed
previously,1 the vast majority of this commentary considers the “thick”2
constitutional claims raised in same-sex marriage cases—whether laws
excluding same-sex couples from marriage or marital rights violate the right
to marry3 or other fundamental rights;4 whether they impermissibly
discriminate on the basis of sex5 or sexual orientation;6 or, in the context of
challenges to Section 3 of the federal Defense of Marriage Act (“DOMA”),7
1. Courtney G. Joslin, Searching for Harm: Same-Sex Marriage and the Well-Being of Ch ildren,
46 HARV. C.R.-C.L. L. REV. 81 (2011).
2. Id. at 81 (citing Toni M. Massaro, Gay Rights, Thick and Thin, 49 STAN. L. REV. 45
(1996)).
3. See, e.g., WILLIAM N. ESKRIDGE, JR., THE CASE FOR SAME-SEX MARRIAGE: FROM SEXUAL
LIBERTY TO CIVILIZED COMMITMENT (1996); Jamal Greene, Comment, Divorcing Marriage from
Procreation, 114 YALE L.J. 1989 (2005).
4. See, e.g., Nelson Tebbe & Deborah A. Widiss, Equal Access and the Right to Marry, 158 U.
PA. L. REV. 1375, 1375 (2010) (asserting that the strongest argument in support of marriage
equality is “conceptualized as a matter of equal access to government support and recognition,
and . . . the doctrinal vehicle that most closely matches the structure of the right can be found
in the fundamental interest branch of equal protection law”); Kenji Yoshino, The New Equal
Protection, 124 HARV. L. REV. 747, 776–87 (2011) (arguing that the Court is moving towards
recognition of “liberty-based dignity claims”).
5. See, e.g., Cass R. Sunstein, Homosexuality and the Constitution, in SEX, PREFERENCE, AND
FAMILY 208 (David M. Estlund & Martha C. Nussbaum eds., 1997); Andrew Koppelman, Why
Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. REV. 197 (1994);
Sylvia A. Law, Homosexuality and the Social Meaning of Gender, 1988 WIS. L. REV. 187; Edward
Stein, Evaluating the Sex Discrimination Argument for Lesbian and Gay Rights, 49 UCLA L. REV. 471
(2001); Deborah A. Widiss et al., Exposing Sex Stereotypes in Recent Same-Sex Marriage Jurisprudence ,
30 HARV. J.L. & GENDER 461 (2007).
6. For some early sources arguing that sexual orientation classifications should be
subjected to strict constitutional scrutiny, see Bruce A. Ackerman, Beyond Carolene Products, 98
Harv. L. Rev. 713 (1985); Cass R. Sunstein, Essay, Sexual Orientation and the Constitution: A Note
on the Relationship Between Due Process and Equal Protection , 55 U. CHI. L. REV. 1161 (1988); Note,
The Constitutional Status of Sexual Orientation: Homosexuality as a Suspect Classif ication, 98 HARV. L.
REV. 1285 (1985); see also Nan D. Hunter, Sexual Orientation and the Paradox of Heightened
Scrutiny, 102 MICH. L. REV. 1528 (2004).
7. Section 3 of DOMA defines marriage f or all federal purposes as the “legal union
between one man and one woman.” Defense of Marriage Act, Pub. L. No. 104-199, § 3, 110
Stat. 2419, 2419 (1996) (codified at 1 U.S.C. § 7 (2006)) (“In determining the meaning of any
Act of Congress, or of any ruling, regulation, or interpretation of the various administrative
bureaus and agencies of the United States, the word ‘marriage’ means only a legal union
between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a
person of the opposite sex who is a husband or a wife.”). The practical ef fect of Section 3 of
DOMA is to deny validly married same-sex couples all of the estimated 1138 federal rights,
benefits and responsibilities that are extended to heterosexual spouses by virtue of their marital
status. Letter from Dayna K. Shah, Assoc. Gen. Counsel, U.S. Gen. Accounting Office, to Hon.
Bill Frist, Majority Leader, U.S. Senate (Jan. 23, 2004), available at http://www.gao.gov/
new.items/d04353r.pdf.

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