"Multiply and replenish": considering same-sex marriage in light of state interests in marital procreation.

• Author: Wardle, Lynn D.

[I]t seems to me at this time we need education in the obvious more than investigation of the obscure.

--Oliver Wendell Holmes, Jr.(1)

1. INTRODUCTION

   The definition, exclusive status, and legal benefits of marriage may become one of this decade's most important domestic policy issues in the United States. Many articulate and influential scholars, lawmakers, and commentators are asking why the preferred legal status and benefits of marriage should not be extended to unions other than traditional marriages (that is, exclusive, presumably lifelong, state approved consensual unions of a man and a not-closely-related woman).(2) Why should marriage be the only preferred and specially recognized connubial relationship in our laws while other forms of intimate personal relationships are denied the same or similar legal status? Why shouldn't same-sex marriage be legalized, or an equivalent marriage-like status be created (such as "civil union" or "domestic partnership") for same-sex couples?(3)

   1. Can the Proposed Legalization of Same-Sex Marriage Be Justified in Terms of the Compelling Social Interests That Justify the Legalization of Traditional Marriage?

      The movement to legalize same-sex marriage asks defenders of exclusive legal protection for heterosexual marriage to explain why our laws should permit heterosexual marriage but should not allow same-sex marriage or some marriage-like alternative status for same-sex couples. That question, however, gets the burden of proof backwards; the burden should rest on those who argue for a substantial change in the arrangement of a fundamental social institution to show justification for the proposed change.(4) Accordingly, a significant change in the definition or structure of a basic social institution like marriage should be considered seriously only if advocates of the proposed change first show by convincing evidence that the proposed change is likely to improve the institution of marriage or otherwise improve society. The burden is on advocates of same-sex marriage to show that legalizing same-sex marriage would comparably fulfill the public policies and social interests that underlie legal marriage, or fulfill other, equally compelling public policies and social interests. However, despite an outpouring of literature advocating same-sex marriage, the evidence that legalizing same-sex marriage or some equivalent domestic status would effect an overall improvement in the institution of marriage or in society is lacking.(5) Indeed, there are substantial indications that legalizing same-sex marriage would undermine some of the important social purposes for marriage and would ultimately harm society.

      I have argued elsewhere that claims that the United States Constitution mandates legalization of same-sex marriage are unsupported by the text, history, or precedents interpreting the Constitution, or any viable interpretation of constitutional doctrine.(6) Of course, just because the Constitution does not mandate legalization of same-sex marriage does not end the discussion; lawmakers may adopt laws that are not constitutionally mandated if they are not constitutionally forbidden, and it has not yet been suggested that the U.S. Constitution forbids the legalization of same-sex marriage.(7) Moreover, constitutional claims for same-sex marriage may turn on an assessment of the comparative contribution of traditional heterosexual marriages and of same-sex unions to the social interests that underlie marriage laws, and how important those interests are to society.(8)

      If the legalization of same-sex marriage were clearly shown to contribute to the social interests and policy purposes that underlie traditional marriage, then, of course, lawmakers could rationally choose to legalize same-sex marriage; but if not, that choice would be arbitrary and suspect. Moreover, if same-sex unions do not contribute to the essential social purposes of traditional marriage, a state that confers the legal status of marriage upon same-sex unions commits fraud when it presents a false image of same-sex unions as comparable to traditional marriage.(9) This undermines the institution of marriage by implicitly denying and devaluing the unique strengths and unequaled contributions of heterosexual marriage to the critical social interests it serves, and it impairs the integrity of the law.

      This Essay demonstrates that advocates of same-sex marriage are unlikely to be able to establish that committed same-sex unions are capable of matching the potential and actual contributions made by heterosexual unions (traditional marriages), and for that reason same-sex marriage should not be legalized. Part I.B distinguishes the social interests (or groups of interests) in marriage from individual interests in marriage and identifies eight profound social interests in the fundamental purposes of marriage, towards which traditional male-female unions historically have contributed much more than same-sex unions conceivably could. The remainder of the Essay compares traditional heterosexual unions with same-sex unions with an emphasis on the social interests promoted and the purposes achieved. Parts II and III present some of the evidence of the unparalleled contributions of heterosexual marriage to achieving social interests relating to responsible procreation. Part IV reviews some of the arguments why same-sex unions are incapable of making comparable contributions. Part V reviews and responds to criticisms of marital procreation policy arguments for exclusively heterosexual marriage, including the Vermont Supreme Court's analysis of this issue in Baker v. State.(10)

      The focus of this discussion is exclusively upon extending marital or marriage-like status and benefits to same-sex couples. This Essay does not dispute that two men or two women may share a deep, meaningful, personal relationship with each other, support each other, develop and pursue mutually fulfilling, socially beneficial, common interests, make strong commitments to each other, and in many ways be as good partners and as good citizens as persons in heterosexual marriages. Those same-sex relationships traditionally have been referred to by such terms as "friendship," "brotherhood," "sisterhood," "companionship," "fellowship," and "camaraderie," which do not necessarily connote any sexual relations. Throughout history there have been sterling examples of wonderful, socially useful, deep, non-sexual friendships between persons of the same sex. Such meaningful friendships undeniably merit social approval and encouragement. However, those relationships are not the same as marriage, nor have they ever before needed to be labeled marriages to be socially beneficial. This Essay maintains that giving marital status to same-sex couples is not necessary for such socially beneficial same-sex relationships to flourish, is not justified in terms of the purposes of marriage, and would further undermine the institution of marriage at a time when it is in great need of revitalization and support.

   2. The Social Purposes of Marriage and the Unique Contributions of Heterosexual Marriage

      The interests of society in marriage and the family justify some substantial regulation of intimate interpersonal relations. Aristotle taught that it was the first duty of legislators to establish rules regulating entrance into marriage.(11) Historically, societies have given unique and special preference to heterosexual marriage because of the benefits the institution provides for society in general and for individual women, men, and children in particular. Society's profound social interests in promoting this particular form of companionate relationship endure, even though we may choose to tolerate many other kinds of relationships.

      1. Distinguishing Social Interests in Marriage from Individual Interests in Marriage

         There is a significant difference between the private or individual interests in marriage and the social or public interests in marriage.(12) The difference lies in the perspective from which marriage is viewed; the former focuses on an individual's or small group's personal benefits and burdens while the latter views marriage from the perspective of the benefits and burdens flowing from the marital relationship to members of society as a whole. The social interest also secures individual interests, but focuses on the interests which the individual members of society share in common with each other. Private individual interests are the highly personalized desires and preferences that particular individuals or small groups of individuals pursue.

         Marriage laws are enacted to secure public, not private, interests.(13) This is true because legal marriage is a public institution, created by law to promote public policy and to further social interests. Thus, marriage law is not (at least, should not be) enacted simply to promote private or personal interests. Rather, marriage law should protect and promote only those individual interests that are shared in common with society as a whole, i.e., social interests.

         Throughout history, the interests of society in marriage and the family have justified substantial regulation of intimate interpersonal relations. Dean Pound suggested that "[f]rom the beginning the social interest in general security has required that the law secure adequately" marriage to protect basic social interests in economic equity and in preventing interpersonal violence in society.(14) Likewise, other scholars, philosophers, and legal and social commentators have emphasized throughout the ages the social purposes of marriage, including procreation, child rearing, channeling sexual behavior, and economic stability, for example.(15) The critical point for the present discussion is that the justifications for and the purposes of legal regulation of marriage have consistently been to protect and promote general social interests, not private interests.

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