The fall of fertility: how same-sex marriage will further declining birthrates in the United States.

• Author: Carroll, Jason S.
• Position: Symposium on Obergefell v. Hodges

Introduction

The current debate over the definition of marriage is typically portrayed as a decision to "expand" or "extend" the boundaries of marriage to include same-sex couples. This argument, however, rests on the assumption that the basic nature of marriage will remain largely unchanged by granting marriage status to same-sex partnerships and that all this policy change will do is absorb same-sex partnerships within the existing boundaries of marriage and extend the benefits of marriage to a wider segment of society. Indeed, the very term "same-sex marriage" implies that same-sex couples in committed relationships are already a type of marriage that should be appropriately recognized and labeled as such. But this understanding, which lead to the recent legalization of same-sex marriage by the United States Supreme Court, is flawed in that it fails to recognize how defining same-sex partnerships as marriages signifies a fundamental change in how marriage will be collectively understood and the primary social purposes for which it exists.

In a formal statement prior to the Supreme Court's decision, seventy prominent academics from all relevant disciplines expressed "deeper concerns about the institutional consequences of same-sex marriage for marriage itself," concluding that "[s]ame-sex marriage would further undercut the idea that procreation is intrinsically connected to marriage" and "undermine the idea that children need both a mother and a father." [dagger] Further, as described in the Brief Amici Curiae of Scholars of Marriage (2) one-hundred prominent scholars asserted that a genderless redefinition of marriage would undermine the critical social norms of marriage, including the norm linking marriage with procreation--thus weakening the institution of marriage as a whole, with significant implications for our society.

Building off of these statements, this article provides an overview of our Brief Amici Curiae of Scholars of Fertility and Marriage and provides further analysis of this "procreative norm" associated with the man-woman definition of marriage. We concur with these other scholars who have raised concerns about weakening that link and the potentially profound impact it will have on the United States' declining and already below-replacement level fertility rate, increasing the likelihood of bringing within our borders the socioeconomic problems experienced by countries abroad with sustained, extremely low fertility rates.

1. The Procreative Norm of Marriage

   The legal institution of marriage has the expressive effect of socially recognizing, promoting and dignifying the nature of the relationships that the law deems eligible for marriage. The expressive effect of legal marriage is the crux of the marriage debate: which rival conception of marriage should harness the law's expressive effect and be reinforced by the law's coercive and pedagogical powers? (3) Judges and scholars have oft expressed a view that the law can play a powerful "teaching" function. (4) For example, in his concurrence in University of Alabama v. Garrett, Justice Kennedy noted the democratically enacted disability law's power to "teach" society the norm of treating persons with disabilities as full-fledged citizens. (5) It is this "expressive effect" or "teaching power" that will serve either to reinforce or to undermine the stabilizing social norms associated exclusively with opposite-sex marriage.

   After all, the more effectively the law defines marriage, and "teaches the truth about marriage, the more likely people are to enter into marriage and abide by its norms." (6) And the more people form marriages and respect marital norms, the more likely it is that children will result, perpetuating both the norms and the society itself, throughout generations. If the law does not effectively define marriage to promote these norms, a contrary result can be expected. Thus, preserving the nature of marriage in law, with an eye towards these norms, is crucial for maintaining not only the great flow of social benefits produced by marriage as an institution, but ultimately the survival of the society itself.

   The essence of the procreative norm is that marriage is intrinsically and inextricably linked with procreation, and therefore can and must only occur between one man and one woman. The most basic message conveyed by the institution of marriage across virtually all societies is that where procreation occurs, this is the arrangement in which society prefers it to occur. Although sex and procreation may occur in other settings, marriage marks the boundaries of procreation that is socially commended. (7) Although marriage benefits its adult participants in countless ways, it is "designed around procreation." (8) The man-woman definition conveys and reinforces that marriage is centered primarily on procreation and children, which man-woman couples are uniquely capable of producing naturally. (9)

   The recent redefining of marriage in genderless terms breaks the critical conceptual link between marriage and procreation by implicitly endorsing an adult-centric model of marriage, and diluting the implicit encouragement the institution of marriage provides for procreation by married couples. It ignores the inherently generative nature of heterosexual marriages, and sends a powerful message that marriage-based procreation is not a valued societal priority. Consistent with the actual experience of states and nations that have adopted this redefinition, such a change will erode the role of marriage in our society, likely leading to fewer marriages and fewer births.

   As Professor Helen Alvare has explained, this shuffling of values deemphasizes the procreative aspects of marriage that until recently have been recognized as essential, and paints a picture of marriage closely associated with a "retreat from marriage" in the United States:

   The notion of marriage that same-sex advocates are describing ... resembles the adult-centric view of marriage associated with the "retreat from marriage" among ... Americans. It would intrinsically and overtly separate sex and children from marriage, for every marriage and every couple and every child. It promotes a meaning of marriage that empties it of the procreative interests understood and embraced by this Court (and every prior generation). (10) Futher, she points to evidence that this trend away from linking procreation and marriage is becoming characteristic of the "millennial generation" as well: (11)

   Professor Cherlin confirms that among young adults who are not necessarily poor, the idea of "soulmate" marriage is spreading. Never-married Millennial report at a rate of 94% that "when you marry, your [sic] want your spouse to be your soul mate, first and foremost." They hope for a "super relationship," an "intensely private, spiritualized union, combining sexual fidelity, romantic love, emotional intimacy, and togetherness." (12) Thus, marriage becomes merely a "reparation, a symbolic capstone, and a personal reward, not a gateway to adult responsibilities," (13) such as childbearing. This is an especially alarming transformation from a demographic standpoint, because people who do not appreciate the social value of creating and rearing children are simply less likely to do so. And that view poses grave risks to a state's ability to maintain its population. (14)

   Undoubtedly the state also values adults' interests in marriage, such as happiness, mutual commitment, increased stability, and social esteem. Yet a view of marriage that focuses solely on these adult-centric interests is incomplete, negates the Court's decisions affirming the states' interests in procreation, and poses a risk to society at large. However compelling such a definition might be, it is fatally defective if its adoption brings about conditions such that our society fails to maintain an adequate fertility rate.

   As the marriage scholars have carefully laid out, compelling states to recognize same-sex marriage will, in time, adversely alter the institution of marriage as a whole by undermining the social norms that are tied to the man-woman understanding of marriage. Those norms guide the procreative tendencies of both homosexual and heterosexual individuals. Weakening the social norm that favors reproduction presents grave risks to aggregate fertility, and even greater long-term risks to society as a whole. (15) As Professor Allen has noted, "[s]ocieties incapable of replicating themselves in numbers and quality relative to competing societies simply die out...." and "[p]oorly designed laws"--including laws that undermine long-standing social norms--can "lead to ... unsuccessful marriages, which in turn lead to low fertility ... and ultimately a decline in the society." (16) That is precisely what the recent redefinition of marriage threatens to do, by weakening several norms currently associated with that institution.

   Critics of the procreative norm are quick to point out that not only are many viable parenting arrangements not "intrinsically generative," but also that many opposite-sex marriages cannot or do not beget children, as if these circumstances render this norm meaningless. These exceptions do not swallow the norm. While homosexual adoptive and foster parenting arrangements are certainly viable and valuable, they do not render such arrangements generative. The possibility of Assisted Reproductive Technology also does not make homosexual relationships generative. While contraception or infertility may lower the odds of a heterosexual couple reproducing, it does not alter the fact that heterosexual relationships are intrinsically generative.

   It is by setting apart these intrinsically generative relationships, and no other kind of...