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Marriage is based on procreation, a fact no claim of gay 'equality' can avoid

March 14, 2004|Douglas R. Kmiec | Douglas R. Kmiec, professor of constitutional law at Pepperdine University, is the author of "Cease-fire on the Family" and "Marriage and Family" in the recent book "Never a Matter of Indifference."

Neither law nor politics provides a readily accessible vocabulary on the question of same-sex marriage. For example, the legal concept of equal protection of the law is not self-defining. To know whether it applies to same-sex marriage, it's first necessary to know whether gays and nongays can similarly produce the individual and social good associated with marriage.

Now that the California Supreme Court has ordered a halt to gay marriages and announced its intention to rule on their legality, what are the relevant considerations? For many, the answer is informed by religious belief that affirms the dignity of all people but disapproves of homosexual conduct because it is contrary to revelation, church teachings, etc. As a matter of religious freedom, religiously informed views of marriage are important and entitled to be heard in legislative debates. But because we live in a religiously pluralistic and secular society, we must also seek answers from nonreligious sources.

Any claim about marriage anchored in distaste, hatred or mean-spiritedness is automatically out of bounds. Gays as individuals or as couples are citizens entitled to the respect due all people. It is abundantly obvious that whether gay or straight, the human personality yearns for friendship and community.

It is here, however, where public opinion consistently draws a line against same-sex marriage. No one on either side of the debate contends that same-sex marriage is biologically compatible with reproduction. Absent artificial insemination or some other third-party means of conception, homosexual couples cannot physically produce children. It is upon this pivotal point, with all its implications for family and society, that the debate turns.

Gay couples tend to be childless, and even when surrogacy or adoption provides children, they are deprived of the mutually supportive and complementary perspectives of mother and father. Although it isn't required of every husband and wife, marriage cannot be separated from procreation and the development of a child's character within a stable family. The prosperity of the American republic, and civilizations before it, has depended on families for this vital instruction. It is irreplaceable.

These are not new insights. The word "matrimony" is from the Latin matrimonium ducere -- reflecting the unity of man and woman for the purpose of having children. Plato insisted that "marriage laws first [be] laid down" and that a fine be levied on those who don't marry because "intercourse and partnership between married spouses is the original cause of childbirths." Aristotle made marriage between husband and wife paramount because the "legislator should begin by considering how the frames of the children whom [they are] rearing may be as good as possible." Later, Rousseau noted that "marriage has civil consequences without which it would be impossible for society itself to subsist."

More than a century ago, the U.S. Supreme Court declared that "certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth than that which seeks to establish it on the basis of the idea of family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony." The court has never wavered from this definition even in its modern jurisprudence. Yes, the court, in Lawrence vs. Texas (2003), did invalidate a criminal prohibition of homosexual sodomy. But that ruling in no way endorsed the practice or same-sex marriage; rather, it simply recognized privacy and the limits of the law.

Principles anchored in privacy are insufficient to determine the public and consequential legal definition of marriage. Marriage at its best is both self- and other-regarding, considerate toward family and the civic community of which it is a part. By comparison, same-sex relationships are largely self-regarding. Gay partners may derive pleasure from such relationships. But because they are not open to new life, they cannot fulfill the duties and obligations long expected of marriage.

Before the mayor of San Francisco illegally issued same-sex marriage licenses, only four judges on the Massachusetts Supreme Judicial Court had the temerity to assert that the possibility of begetting children was not at the heart of the marital estate. These activist judges not only defied millenniums of history but also ignored the words of the Supreme Court in Lawrence, that it would "demean a married couple were it to be said marriage is simply about the right to have sexual intercourse."

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