Same-sex marriage and procreation


Same-sex marriage and procreation

Same-sex marriage and procreation is an issue that lawmakers and judges have used to determine whether or not same-sex marriage is legal. One such use occurred in the 2006 Washington state Supreme Court decision, "Andersen v. King County" [ [http://www.courts.wa.gov/newsinfo/content/pdf/759341opn.pdf Washington state Supreme Court decision 62-page decision opposing same-sex marriage] ] (discussed further below), that upheld state legislation prohibiting same-sex marriage:

:: "Thus, the State is required to demonstrate only a rational basis to justify the legislation. ..... The legislature was entitled to believe that limiting marriage to opposite-sex couples furthers the State’s legitimate interests in procreation and the well-being of children."

A 2007 Maryland Supreme Court decision, "Deane & Polyak v. Conaway" [ [http://mdcourts.gov/opinions/coa/2007/44a06.pdf Maryland high court decision against same-sex marriage] ] ) (discussed further below), also upheld similar legislation, using similar reasoning based on the issue of procreation:

:: "We agree that the State's asserted interest in fostering procreation is a legitimate governmental interest."

Such reasoning is consistent with expressed Congressional intent on marriage, and with explanations on the rights associated with marriage in a variety of U.S. Supreme Court cases. Also reviewed below are comments on procreation and marriage made by legal and religious academics, and by members of private organizations - i.e., people that legislators and judges refer to when they use non-judicial support for their decisions. A very lengthy history of arguments connecting marriage and procreation is available in a report [http://www.samesexprocreation.com/document/marriage.htm Marriage's Foundation on Procreation Throughout History] .

The issue of procreation creates a biological inequality between heterosexual and homosexual couples, an inequality that is scrutinized by these courts and others in light of the Equal Protection Clause of the 14th Amendment to the United States Constitution, and in light of other important marriage cases such as Loving v. Virginia (which involved interracial marriage). Interestingly, in parallel for many years, scientists have been researching methods to achieve same-sex procreation for humans, either through the creation of female sperm or a male egg.

At the same time, some countries have enacted laws that fully extend marriage laws to same-sex couples, as has an order of the Supreme Court of the state of Massachusetts. Thus, the issue of procreation is not always a deciding factor by legislators or courts.

In U.S. federal law

* In 1996, Congress passed the Defense of Marriage Act that defines marriage in Federal law as "a legal union between one man and one woman as husband and wife". To provide guidance to federal courts (and the public as well), Congress explained its intent in a House Report (H.R. 104-664 at 33, 104th Congress, 2nd Session, 1996) that key to this requirement of marriage being a union and of man and one woman is procreation:

:: Nothing in the U.S. Supreme Court's recent decision (referring to Romer v. Evans, 116 S.Ct. 1620 (1996)) suggests that the Defense of Marriage Act is constitutionally suspect. It would be incomprehensible for any court to conclude that traditional marriage laws are .... motivated by animus toward homosexuals. Rather, they have been the unbroken rule and tradition in this (and other) countries primarily because they are conducive to the objectives of procreation and child-rearing.

To understand Congress's intent in passing a new statute, federal courts will often rely on such comments made in the legislative history associated with the new statute, especially when the constitutionality of the statute is being challenged in a federal lawsuit. (The Congressional Research Service has prepared a guide to interpreting federal statutes, including a section on the use and importance of legislative history - [ [http://fas.org/sgp/crs/misc/97-589.pdf Statutory Interpretation: General Principles and Recent Trends] ] ).

Most likely, Congress made this statement to anticipate and thwart legal challenges based to DOMA that might rely on a dicta (an explanatory comment, as opposed to the actual ruling) in a 1965 Supreme Court, Griswold v. Connecticut (381 U.S. 479), that (the cause of, or social project of) procreation is not essential to marriage:

:: Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. "Griswold v. Connecticut"

* June 2005 - a U.S. district court judge, Judge Gary Taylor, rules that the federal Defense of Marriage Act does not violate the U.S. Constitution's provisions for equal protection and due process (in the case "Smelt v. Orange County (USDCCDCa)" [ [http://www.lmaw.org/freedom/docs/US%20-%20Smelt%20v%20Orange%20County.pdf text of court decision] ] ). In defending the federal government's legitimate interest in not recognizing "gay marriage", the decision states::: The Court finds it is a legitimate interest to encourage the stability and legitimacy of what may be viewed as the optimal union for procreating and rearing children by both biological parents. .. Because procreation is necessary to perpetuate humankind, encouraging the optimal union for procreation is a legitimate government interest.

In U.S. state courts

* September 2007 - in this month, the Maryland Court of Appeals rules against same-sex marriage in the state of Maryland, in the case "Deane & Polyak v. Conaway" [ [http://mdcourts.gov/opinions/coa/2007/44a06.pdf Maryland high court decision against same-sex marriage] ] ). The court officially rejected four arguments offered in support of same-sex marriages, with two of the rejections based on the impossibility of procreation by same-sex couples. On page 70 of their decision, they begin their third rejection of a right to same-sex marriage - "The right to same-sex marriage is not so deeply rooted in the history and tradition of this state or nation as a whole such that it should be deemed fundamental". On page 77, they explain why same-sex marriages are not traditional enough:

:: We find that, while these cases certainly establish generally the fundamental right to marry, they do not represent a compelling basis to extend the fundamental right to include same-sex marriage. All of the cases infer that the right to marry enjoys its fundamental status due to the male-female nature of the relationship and/or the attendant link to fostering procreation of our species. We explain.

The court, on pages 78 to 80, cite multiple court decisions linking marriage and procreation. On page 80, they cite a comment from a Washington State Supreme Court case, "Andersen" (discussed below):

:: ("Nearly all United States Supreme Court decisions declaring marriage to be a fundamental right expressly link marriage to fundamental rights of procreation, childbirth, abortion and child-rearing.")

On page 96 of their decision, they begin their fourth rejection of a right to same-sex marriage - "Family Law 2-201 comports with notions of rational basis review" (Family Law 2-201 being the law that restricts marriage to only a man and a woman). Here they argue that 2-201 does not irrationally discriminate against same-sex couples. On page 98, they explain why:

:: We agree that the State's asserted interest in fostering procreation is a legitimate governmental interest. As one of the fundamental rights recognized by the Supreme Court as a matter of personal autonomy, procreation is considered one of the most important of the fundamental rights. ..... In light of the fundamental nature of procreation, and the importance placed on it by the Supreme Court, safeguarding an environment most conducive to the stable propagation and continuance of the human race is a legitimate government interest. ..... As stated earlier in this opinion, marriage enjoys its fundamental status due, in large part, to its link to procreation. ..... This "inextricable link" between marriage and procreation reasonably could support the definition of marriage as between a man and a woman only, because it is that relationship that is capable of producing biological offspring of both members (advances in reproductive technologies notwithstanding).

The Court concludes its' decision, with the last sentence of the Conclusion and the decision resting entirely on procreation:

:: In declaring that the State's legitimate interests in fostering procreation and encouraging the traditional family structure in which children are born are related reasonably to the means employed by Family Law 2-201, our opinion should by no means be read to imply that the General Assembly may not grant and recognize for homosexual personal civil unions or the right to marry a person of the same sex.

That is, unless same-sex couples can same-sex procreate, only the state's General Assembly can authorize same-sex marriage by passing a new law. See also Same-sex marriage in Maryland, and a Washington Post blog on the decision's use of the procreation issue [ [http://blog.washingtonpost.com/rawfisher/2007/09/marylands_gay_marriage_ruling.html Washington Post blog] ] .

* October 2006 - in this month, a California Appeals Court (1st District) rejects attempt to allow same-sex marriage in the state of California, saying it is an issue for the voters and legislature, not the courts. (In March 2007, the California Supreme Court will have a session to hear oral arguments in this case, with a decision expected by June 2007.) The lower judges distinguished around an influential California Supreme Court case, California v. Perez, which eliminated laws banning interracial marriages, by relying in part on the procreation argument:

:: "Marriage has historically stood for the principle that men and women who may, without planning or intending to do so, give life to a child (procreate) should raise that child in a bonded, cooperative and enduring relationship." "court decision"

* July 2006 - in this month, the Washington state Supreme Court upheld a state law banning same-sex marriage, in the case "Andersen v. King County" [ [http://www.courts.wa.gov/newsinfo/content/pdf/759341opn.pdf Washington state Supreme Court's 62-page decision opposing same-sex marriage] ] , which was cited months later by the Maryland Supreme Court (see above). Starting on page 60 of their decision, in the conclusion stating their ruling, the court explained why the state legislators can use the issue of procreation as a criterion for marriage:

:: "Thus, the State is required to demonstrate only a rational basis to justify the legislation. Under this highly deferential standard, any conceivable state of facts providing a rational basis for the classification may be considered. The legislature was entitled to believe that limiting marriage to opposite-sex couples furthers the State’s legitimate interests in procreation and the well-being of children. ... In contrast [to the interracial case, Loving v. Virginia ] , in this case the State has established that DOMA was enacted to codify the common law, to promote procreation, and to encourage stable families."

The ruling's conclusion had been earlier stated in the decision, at page 48:

:: "We conclude that limiting marriage to opposite-sex couples furthers the State’s interests in procreation and encouraging families with a mother and father and children biologically related to both."

* December 2005 - by a 4-1 vote, a New York State appellate court rejects a lower court ruling that a state law forbidding same-sex marriage was unconstitutional. The appeals court argued in part that the state had a legitimate interest in promoting heterosexual marriage. Two quotes from the decision::: Marriage promotes sharing of resources between men, women and the children that they procreate. It is based on the presumption that the optimal situation for child-rearing is having both biological parents [the procreators] in a committed, socially esteemed relationship."and that the definition of marriage in state law:: ... expresses an important, long-recognized public policy supporting, amongst other things, procreation, child welfare and social stability - all legitimate state interests."

* June 2005 - by a 2-1 vote, a New Jersey state appeals court, in the decision "Lewis v. Harris", upholds a state law that prohibits same-sex marriage. The majority decision states::: [O] ur society and laws view marriage as something more than just State recognition of a committed relationship between two adults. Our leading religions view marriage as a union of men and women recognized by God, and our society considers marriage between a man and a woman to play a vital role in propagating the species [i.e. procreation] and in providing the ideal environment for raising children.However, one year later in 2006, the New Jersey state Supreme Court overrules the appeals court decision (see Lewis v. Harris), ruling that the state must offer same-sex couples the right to marry (e.g., by changing the state marriage laws) or something equivalent (e.g., adding civil unions to the law). The Supreme Court did not specify what the legislators must do, but ordered them to do something.

* 2003 - the Arizona Court of Appeals, in a decision "Standhardt v. Superior Court" (77 P.3d 451, 463-464) with regards to Arizona's state marriage law, a three judge panel stated in part::: Petitioners have failed to prove that the State's prohibition of same sex marriage is not rationally related to a legitimate state interest. We hold that the State has a legitimate interest in encouraging procreation and child-rearing within the marital relationship, and that limiting marriage to opposite-sex couples is rationally related to that interest. Even assuming that the State's reasoning for prohibiting same sex marriage is debatable, or arguably unwise, it is not 'arbitrary' or 'irrational'.

* 1974 - the Court of Appeals of the state of Washington, in a decision ("Singer v. Hara", 522 P.2d 1187,1995 [ [http://www.qrd.org/qrd/usa/legal/singer-v-hara-05.20.74 text of 1974 Washington state court decision against same-sex marriage] ] ) concerning a request for a same sex marriage license, states in part::: In the instant case, it is apparent that the state's refusal to grant a license allowing the appellants to marry one another is not based upon appellants' status as males, but rather it is based upon the state's recognition that our society as a whole views marriage as the appropriate and desirable forum for procreation and the rearing of children. This is true even though married couples are not required to become parents and even though some couples are incapable of becoming parents and even though not all couples who produce children are married. These, however, are exceptional situations.

:: The fact remains that marriage exists as a protected legal institution primarily because of societal values associated with the propagation of the human race. Further, it is apparent that no same-sex couple offers the possibility of the birth of children by their union. Thus the refusal of the state to authorize same-sex marriages results from such impossibility of reproduction rather than from an invidious discrimination "on account of sex". Therefore, the definition of marriage as the legal union of one man and one woman is permissible as applied to appellants, notwithstanding the prohibition contained in the ERA, because it is founded upon the unique physical characteristics of the sexes and appellants are not being discriminated against because of their status as males per se. In short, we hold the ERA does not require the state to authorize same-sex marriage.

* 1971 - the Supreme Court of Minnesota, in the decision "Baker v. Nelson" (191 N.W.2d 185 [ [http://www.lmaw.org/freedom/docs/MN%20Baker%20v%20Nelson.pdf text of 1971 Minnesota court decision against same-sex marriage] ] ), rules that same-sex couples have no right to be married in the state, for two reasons. First, they rule that the state marriage law in question was drafted by people whose definition of marriage was only between a man and a woman, which did not cover the two Minnesotan men seeking a marriage license. Second, they ruled that such a law is not an unconstitutional violation of the Equal Protection Clause legal precedents, because same-sex couples are not equal. The court states in part:

:: "The institution of marriage as a union [of] man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis. "Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)", which invalidated Oklahoma's Habitual Criminal Sterilization Act on equal protection grounds, stated in part: "Marriage and procreation are fundamental to the very existence and survival of the race." This historic institution manifestly is more deeply founded than the asserted contemporary concept of marriage and societal interests for which petitioners contend. The due process clause of the Fourteenth Amendment is not a charter for restructuring it by judicial legislation."

Same-sex marriage law without provisions for procreation

While the issue of procreation has been a factor in many US judicial decisions and legislative activities (some instances listed above), in other situations it is not a limiting factor. As of 2008, six countries have fully extended marriage laws to same-sex couples: Belgium, Canada [Same-sex marriage in Canada] , South Africa, Spain, Norway, and Netherlands. In the United States, the Supreme Courts of Massachusetts and California have ruled that prohibiting same-sex couples to marry under those states' marriage laws is a violation of those states' constitutions.

* November 2003 - Massachusetts: Goodridge v. Department of Public Health - In November 2003, the Supreme Judicial Court of Massachusetts ruled that the marriage laws of Massachusetts must be available to same-sex couples. The decision stems out of a lawsuit filed by a group of same-sex couples in 2001. Initially, the plaintiffs' lawsuit was rejected. In May 2002, a lower court (the Superior Court) judge ruled for the state, declaring that the marriage law, G.L.c. 207, was not available to same-sex couples. The judge first rejected the lawsuit on the grounds that the law clearly indicating marriage is for a man and a woman. The judge then addressed the constitutional challenges to such language, and dismissed those as well. The Supreme Judicial Court summarized this latter rejection, and its reliance on the issue of procreation:

:: Turning to the constitutional claims, he held that the marriage exclusion does not offend the liberty, freedom, equality, or due process provisions of the Massachusetts Constitution, and that the Massachusetts Declaration of Rights does not guarantee "the fundamental right to marry a person of the same sex." He concluded that prohibiting same-sex marriage rationally furthers the Legislature's legitimate interest in safeguarding the "primary purpose" of marriage, "procreation". The Legislature may rationally limit marriage to opposite-sex couples, he concluded, because those couples are "theoretically... capable of procreation", they do not rely on "inherently more cumbersome noncoital means of reproduction, and they are more likely than same-sex couples to have children, or more children.

This lower court argument using procreation, in the years to follow, was used by supreme courts in other states. But it was rejected by the Massachusetts Supreme Judicial Court in November 2003 by a vote of 4-3. In their decision (see [http://www.masslaw.com/archives/ma/opin/sup/1017603.htm Goodridge v. Dept. of Public Health, 798 N.E.2d 941] ), the court rejected the lower court decision for a variety of reasons. Three paragraphs of the Supreme Judicial Court's decision comprise their rejection of same-sex procreation as a qualifying test for marriage:

:: The judge in the Superior Court endorsed the first rationale, holding that "the state's interest in regulating marriage is based on the traditional concept that marriage's primary purpose is procreation". This is incorrect. Our laws of civil marriage do not privilege procreative heterosexual intercourse between married people above every other form of adult intimacy and every other means of creating a family. General Laws c. 207 contains no requirement that the applicants for a marriage license attest to their ability or intention to conceive children by coitus. Fertility is not a condition of marriage, nor is it grounds for divorce. People who have never consummated their marriage, and never plan to, may be and stay married. See Franklin v. Franklin, 154 Mass. 515, 516 (1891) ("The consummation of a marriage by coition is not necessary to its validity"). [22] People who cannot stir from their deathbed may marry. See G. L. c. 207, 28A. While it is certainly true that many, perhaps most, married couples have children together (assisted or unassisted), it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage.

:: Moreover, the Commonwealth affirmatively facilitates bringing children into a family regardless of whether the intended parent is married or unmarried, whether the child is adopted or born into a family, whether assistive technology was used to conceive the child, and whether the parent or her partner is heterosexual, homosexual, or bisexual. If procreation were a necessary component of civil marriage, our statutes would draw a tighter circle around the permissible bounds of non-marital child bearing and the creation of families by non-coital means. The attempt to isolate procreation as "the source of a fundamental right to marry," post at (Cordy, J., dissenting), overlooks the integrated way in which courts have examined the complex and overlapping realms of personal autonomy, marriage, family life, and child rearing. Our jurisprudence recognizes that, in these nuanced and fundamentally private areas of life, such a narrow focus is inappropriate.

:: The "marriage is procreation" argument singles out the one unbridgeable difference between same-sex and opposite-sex couples, and transforms that difference into the essence of legal marriage. Like "Amendment 2" to the Constitution of Colorado, which effectively denied homosexual persons equality under the law and full access to the political process, the marriage restriction impermissibly "identifies persons by a single trait and then denies them protection across the board." Romer v. Evans, 517 U.S. 620, 633 (1996). In so doing, the State's action confers an official stamp of approval on the destructive stereotype that same-sex relationships are inherently unstable and inferior to opposite-sex relationships and are not worthy of respect.

Supreme Court Justice Scalia's hypothetical argument of the irrelevance of procreation. In 2003, the U.S. Supreme Court, in the case Lawrence v. Texas, struck down a Texas state law that criminalized sodomy. In his dissent, Justice Antonin Scalia posed a question about same-sex marriage, which he answers with a rejection of any role for the issue of procreation in same-sex marriage decisions. He comments::: If moral disapprobation of homosexual conduct is "no legitimate state interest" for purpose of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), " [w] hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring", ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising " [t] he liberty protected by the Constitution", ibid.? Surely mot the encouragement of procreation, since the sterile and the edlerly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decision of this Court."

Role of procreation in current marriage cases in California

In 2008, the Supreme Court of the state of California ruled that same-sex marriage is allowed in the state, deciding not to uphold a state Court of Appeal decision from October 2006, the In re Marriage Cases, that agreed with arguments made by lawyers for the state that California marriage laws do not have to be extended to same-sex couples.

The Court of Appeal did not use the issue of procreation in their 2-1 decision [ [http://data.lambdalegal.org/pdf/woo-v-california/woo-v-cali-decision2.pdf California In re Marriage Cases] ] , because it was not raised as an issue by the Attorney General of the State of California, whose office is fighting attempts of the plaintiffs to be granted marriage licenses.

However, in a footnote at the bottom of page 60, the Appeals Court's Judge McGuiness, who wrote the majority decision, observes::: "However, this [another court decision] does not mean the historical understanding of marriage as an opposite-sex union is irrational. On the contrary, this understanding is consistent with the biological reality that, before the development of reproductive technologies, only heterosexual couples were capable of procreating."

Judge Parilli, in her concurring opinion, observes similarly (bottom of page 2) - "giving life to a child":

:: "And whether it applies in every marriage or not, marriage has historically stood for the principle that men and women who "may", without planning or intending to do so, give life to a child should raise that child in a bonded, cooperative and enduring relationship."and later on page 4::: "Words do matter and there is much in favor of using terms [in marriage laws] that differentiate to describe biologically different models."

Judge Kline, in his dissent, in part accuses the two majority judges of using the issue of procreation implicitly (bottom of page 24 of his dissent)::: "However, some form of the procreation argument is vigorously advanced by several amici curiae, and reasons related to religion and procreation are relied upon in most of the opinions rejecting constitutional challenges to restrictions on same-sex marriage, including those relied upon by my colleages. It is therefore necessary to address these issues."

After reviewing court decisions involving procreation, he concludes in part on page 28::: "Because the ability of spouses to procreate - naturally and/or responsibly - is not among or necessarily related to the reasons the United States Supreme Court deems the right to marry a fundamental constitutional right, and because the reasons the high court has relied upon to reach that conclusion are as applicable to same-sex couples as to others, the right of such couples to marry is as highly protected by our Constitution as the right of opposite-sex couples."

On March 4, 2008, the California Supreme Court conducted a 90 minute session to hear oral arguments from plaintiffs and defendants in this case. At least one question, as reported by the San Francisco Chronicle [ [http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/03/05/MNBDVDCIM.DTL State Supreme Court grills lawyers in same-sex marriage case (San Francisco Chronicle, 4 March 2008)] ] , dealt with procreation. Justice Joyce Kennard asked the state's lawyer (the state is fighting same-sex marriage) why their arguments, which do not rely on procreation, are different from those of their co-defendants, whose written arguments focus on procreation. The attorney responded that the differences do not weaken the joint position of the opponents, both of which rely on tradition::: "We submit that when the state is acting so aggressively to protect the rights of domestic partners and families, that it's not irrational to maintain the definition of marriage that has stood the test of time."

Justice Kennard also asked about procreation with a lawyer for a religious group opposing same-sex marriage::: "If procreation is a fundamental purpose of marriage, then the next inquiry would be should infertile individuals be prohibited from entering in to a marriage relationship?" Kennard asked. "No, your honor ... it would violate the right of privacy to make that inquiry," Lavy said.

Marriage and procreation

In U.S. courts

Prior to lawsuits involving same-sex marriage, a variety of federal and state courses had many times ruled on aspects of heterosexual marriages. Quotes concerning procreation from some of these decisions are listed below. Some of these quotes, in turn, have been cited years later by federal and state courts for lawsuits involving same-sex marriage.

* 1977 - the United States Supreme Court, in Carey v. Population Services (431 U.S. 678, 685) [ [http://biotech.law.lsu.edu/cases/reproduction/carey.htm Carey v. Population Services, text of Supreme Court decision] ] issues a ruling on contraceptives and state laws. The Supreme Court writes::: While the outer limits of this aspect of privacy have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage, ... procreation, ... contraception, ... family relationships, ... and child rearing and education.:: The decision whether or not to beget or bear a child [procreate] is at the very heart of this cluster of constitutionally protected choices. That decision holds a particularly important place in the history of the right of privacy, a right first explicitly recognized in an opinion holding unconstitutional a statute prohibiting the use of contraceptives, ... and most prominently vindicated in recent years in the contexts of contraception, ... and abortion ... . This is understandable, for in a field that by definition concerns the most intimate of human activities and relationships, decisions whether to accomplish or to prevent conception are among the most private and sensitive. "If the right of privacy means anything, it is the right of the individual, married or single, to be free of unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child [procreate] ." "Eisenstadt v. Baird".

In U.S. and global politics

*June 2008 - A mayor of a remote Greek island performs the first same-sex marriages in Greece, which the top prosecutor of Greece saying will be automatically nullified. An article in the New York Times [ [http://www.nytimes.com/2008/06/04/world/europe/04greece.html "Same-sex marriages performed in Greece"] ] comments on the prosecutor's opposition (with "forming" assumed to include "procreating")::: "He said the decree was founded in the spirit of the Constitution, which defines marriage as matrimony between a man and a woman with the intent of forming a family."

*January 2006 - A French government commission concludes in a report that same-sex marriage and medically assisted procreation for homosexual couples should not be made legal. The report, "Parliamentary Report on the Family and the Rights of Children", was released January 27th [ [http://www.assemblee-nationale.fr/12/dossiers/mission_famille_enfants.asp Famille et droits des enfants] ] . A quote from the report::: “Making marriage available to same-sex couples therefore presupposes that they will also be given the right to adopt and receive medical assistance for procreation, and even the right to use surrogate mothers, because such couples are not fertile. The Mission is divided on this subject. It considered the consequences for the child’s development and the construction of his or her identity of creating a fictitious filiation by law – two fathers, or two mothers – which is biologically neither real nor plausible."

* July 2004 - U.S. Senator Orrin Hatch, in an article in the National Review, [http://www.nationalreview.com/comment/hatch200407080829.asp "The marriage amendment is the democratic way"] , concludes in part with::: For a simple and compelling reason, traditional marriage has been the norm in every political community for 5,000 years. Society has an interest in the future generations created [procreated] by men and women. Decoupling procreation from marriage in order to make some people feel more accepted denies the very purpose of marriage itself.

* March 2004 - Bruce Fein, a Washington D.C. lawyer, testified on 30 March 2004 to the U.S. House of Representatives Judiciary Committee subcommittee on the Constitution with regards to the "The Defense of Marriage Act ( [http://www.house.gov/judiciary/const033004.htm his testimony] ), stating in part::: .... At present, every State but Massachusetts confines marriage to opposite-sex couples to advance compelling societal interests in optimal procreation and child nurturing. Procreation is necessary for the preservation of the species. Traditional marriage laws encourage procreation by offering both material legal advantages and social esteem for opposite-sex unions. Same-sex couples cannot procreate. ..... For the reasons elaborated above, DOMA rationally advances the government interest in optimal conditions for procreation and child nurturing. ....

In Africa

Other than South Africa, which has legalized same-sex marriage [ [http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=iol116488269569B256 Same-sex marriage legalized in South Africa] ] , there is little effort in the rest of Africa to do similarly. Over the past few years, political and religious leaders in Africa have argued against homosexuality and same-sex marriage, some arguments based on procreation. For example, Reverend Father Leonard Lebuga writes in an article in the 4 January 2008 edition of the Kampala Monitor [ [http://allafrica.com/stories/200801030937.html "Uganda: Homosexuality - A Challenge to Christianity (Kampala Monitor, 4 Jan 2008)] ] ::: Homosexuality is an immoral sexual act which should be shunned by all people irrespective of their sex, calibre and tribe. Regarding homosexual acts, the traditional and exclusive teaching of the Church is condemnatory, seeing such acts as morally wrong. God's chosen people were engaged in a procreation race with the cultures around them and homosexuality is a lousy procreation strategy.

In an article in the 17 August 2007 edition of AllAfrica Global Media [ [http://allafrica.com/stories/200708180074.html "Uganda: Religious Leaders Rap Homosexuals" 17 Aug. 2007] ] , various religious leaders are quoted as condemning the efforts of homosexuals in Uganda to fight discrimination. Some quotes::: Sheik Yahaya Lukwago, an executive member of the Uganda Muslims Supreme Council, accused the [homosexuals] of polluting the public. "In the Sharia law, they deserve to be killed. Allah created us for reproduction [procreation] . Prophet Mohammed wrote in the Quran that homosexuals should be killed."

:: The Reverend Aaron Mwesigye, the Provincial Secretary of the Church of Uganda, said the practice was against the scriptures. "God's design and intention is for humanity to express itself only in male and female relationship and for procreation. We condemn homosexuality.

:: A senior Catholic cleric yesterday condemned homosexuality saying it "goes against the grain of the scriptures. ... Procreation is the main purpose humanity was created. How would procreation take place if homosexuality is exalted.", he asked.

In churches

* April 2008 - In a column for the online Christian Post [ [http://www.christianpost.com/article/20080404/31802_Marriage_and_the_Glory_of_God.htm "Marriage and the Glory of God" (Christian Post, 4 April 2008] ] , Albert Mohler Jr., president of the Southern Baptist Theological Seminary, writes of procreation and marriage::: "The church has recognized three great purposes of marriage, and all three of these have been subverted by the sexual revolution and its aftermath. The first is the procreation and nurture of children, if God should grant children to the marriage. This purpose is dishonored by many, but it is honored among believers in the Lord Jesus Christ. Children are to be welcomed as gifts to the institution of marriage, transforming husband and wife into father and mother. In our anti-natalist age, some see children as impositions – or worse. The denial of a procreative orientation for marriage – every marriage genuinely open to the gift of children – is a denial of the biblical vision of marriage itself."

* March 2008 - In an op-ed piece in the Baltimore Sun [ [http://www.baltimoresun.com/news/opinion/oped/bal-op.marriage16mar16,0,5228239.story Worth protecting - Maryland must reject same-sex marriage and civil unions in order to preserve the institution that fosters life (Baltimore Sun, 16 March 2008)] ] , Richard Dowling, executive director of the Maryland Catholic Conference, argues against same-sex marriage because same-sex couples can't jointly procreate::: "That common interest is the acknowledgment that the union of one man and one woman is the only possible source of - and their married relationship the best possible environment for - the children who will become society's next generation."

* October 2007 - in this month, Catholic dioceses as represented by the Iowa Catholic Conference called for a state constitutional amendment to ban same-sex marriages, as reported in [http://desmoinesregister.com/apps/pbcs.dll/article?AID=/20071027/NEWS/71027006/1001/COMM08 "Iowa Catholics call for same-sex marriage ban in law"] (Des Moines Register, 27 October 2006). In a published press release, the Conference stated in part::: "Neither church nor state can alter the basic meaning and structure of marriage." ... "In a manner unlike any other relationship, marriage makes a unique and irreplaceable contribution to the common good of society, especially through the procreation and education of children."

* October 2004 - the Mormon church releases a statement [http://www.lds.org/newsroom/showrelease/0,15503,3881-1-20336,00.html "First Presidency Statement on Same-Gender Marriage"] , which states in part::: As a doctrinal principle, based on sacred scripture, we affirm that marriage between a man and a woman is essential to the Creator's plan for the eternal destiny of His children. The powers of procreation are to be exercised only between a man and a woman lawfully wedded as husband and wife. Any other sexual relations, including those between persons of the same gender, undermine the divinely created institution of the family.

* 1994 - Catechism of the Catholic Church - Rule 1652::: By its very nature the institution of marriage and married love is ordered to the procreation and education of the offspring and it is in them that it finds its crowning glory.

Academic arguments against link

"Divorcing marriage from procreation" by Jamal Greene, Yale Law Journal, 2005, [http://www.yalelawjournal.org/114/8/1989_jamal_greene.html (YLJ paper download)] . Abstract:

:: Public debate about same-sex marriage has spectacularly intensified in the wake of the Massachusetts Supreme Judicial Court's decision in Goodridge v. Department of Public Health. But amid the twisted faces, shouts, and murmurs surrounding that decision, a bit of old-fashioned common-lawmaking has been lost. Some have criticized the Goodridge court for its apparently result-oriented approach to the question of whether, consistent with the Massachusetts Constitution, the commonwealth may deny marriage licenses to same-sex couples. Others have defended the decision, both on the court's own rational basis terms and on other grounds, including sex discrimination and substantive due process. This Comment contends that both sides are partly right.

:: I join those commentators who find Goodridge's reasoning flawed but its outcome correct. Where I part ways is in recognizing the vital importance but untapped potential of the Supreme Court's decision in Turner v. Safley. The Turner Court held unconstitutional a Missouri prison regulation denying inmates the right to marry except for "compelling reasons." It is a familiar case, frequently invoked in legal arguments over same-sex marriage to support the proposition that marriage is a fundamental right under our federal constitutional jurisprudence. Too often, however, these arguments miss the totality of what Turner tells us about exactly why marriage is a fundamental right. Because the Turner Court struck down a marriage ban that applied to a population with no legal right to procreate and that provided an exception for pregnancy, the decision undermines any claim that marriage is fundamental because of an inexorable connection to procreation.

:: Part I of this Comment scrutinizes and ultimately rejects the Goodridge court's rational basis analysis. Part II explores the road not taken in Goodridge--the fundamental rights approach of cases such as Loving v. Virginia, Zablocki v. Redhail, and Turner. I argue that for marriage to comport with our fundamental rights jurisprudence, the source of its constitutional definition must be constitutional common law, not individual state statutes. Part III rediscovers Turner as a source of that constitutional definition, concluding that the case is irreconcilable with the view that the possibility of procreation is a necessary affluent of marriage's fundamentality. With Bowers v. Hardwick officially dead, Turner insists that same-sex marriage bans answer to strict, and therefore fatal, scrutiny.

Academic arguments for link

"The Procreative Argument for Proscribing Same-Sex Marriage" by Prof. Douglas Kmiec, Pepperdine Law School, 2004, [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1019927 (SSRN paper download)] . Abstract:

:: Kmiec argues that the state interest for maintaining marriage as an institution between a man and a woman is both the encouragement of procreation and its responsible treatment by heterosexual couples. Kmiec asserts that marriage and procreation are necessarily related. He anticipates and responds to contrary arguments by demonstrating that acceptance of the procreative state interest does not depend upon excluding from marriage those who cannot physically procreate because of age or infertility and that adoption and asexual reproduction by homosexual couples do not substantially affect procreation rates. The article also suggests that public sanctioning of homosexual relationships results in an increase in same-sex couples and in cohabiting heterosexual couples. Marriage licensing procedures serve as a means of instilling an ethic of responsible procreation among heterosexual couples. Kmiec traces relevant history and jurisprudence to show societal and legal recognition of the link between marriage and procreation. Kmiec concludes by cautioning against analogizing between the civil rights movement and the advocacy of same-sex marriage.

Science and same-sex marriage/procreation

All of these legal, political, academic and other discussions of same-sex marriage and procreation are based, in part, on the scientific fact that human same-sex procreation is impossible. This scientific fact creates at least one inequality between heterosexual and homosexual couples, an inequality that courts assess in light of equal protection laws, as seen in the quotes above. However, as of the year 2008, there are multiple efforts around the world to make human same-sex procreation possible, if not clinically practical, which will change these discussions where the discussions assume that human same-sex procreation is impossible.

The most promising efforts to achieve human same-sex procreation is to create, from adult cells, either female sperm or male eggs. An Australian news service reports that one group in at Newcastle upon Tyne University in England promises to create mature human female sperm within five years (see [http://www.news.com.au/story/0,23599,23139620-401,000.html "Scientists turn bone marrow into sperm"] - Feb. 2008). Canada Free Press reports on a Brazilian effort that has turned embryonic stem cells from male mice in to both sperm and eggs (see [http://canadafreepress.com/index.php/article/1692 "Males Now Unneccesary: Women Create Their Own Sperm"] - Feb. 2008) Such research has been conducted for over 20 years with regards to same-sex procreation in mice, fish, chickens, horses and humans (see [http://www.samesexprocreation.com/timeline.htm "Timeline of same-sex procreation scientific developments"] ).

The ability to manipulate both natural science and various legal systems in ways, should not be misconstrued to mean that there is any substanitive change to the scientific fact that human same-sex procreation is impossible. Any inequalities subjuctively perceived in legalistic terms are not created by or the fault of the scientific facts. The merit of altering or offering alternative to the current heterosexual method of human procreation is of questional value at this time.

Legal status, Laboratories work and promising research aside, it can be said that societies and the human species gain no genetic biodiversity because same-sex couples and homosexual relationships can produce no new offspring. The process of natural selection and continued survival of the human race is insured by heterosexual procreation. Though procreation often takes place regardless of marital status, success of the human species is thus guaranteed never the less. Therefore, same-sex partnerships ultimate contribution to humanities success in terms of survival and continuum is not clear.

Legality of same-sex procreation

Same-sex procreation is currently legal in every US state except Missouri. While many states have prohibited asexual reproduction and human cloning, most states have defined asexual reproduction as reproduction not initiated by the union of a sperm and an egg, language which presumably allows the use of "female sperm" and "male eggs", as well as genetically modified gametes. Missouri became the only state to prohibit same-sex conception and the use of modified gametes when voters enacted the Stem Cell Initiative in 2006, which contains the following language specifying the use of natural gametes:

::(2) “Clone or attempt to clone a human being” means to implant in a uterus or attempt to implant in a uterus anything other than the product of fertilization of an egg of a human female by a sperm of a human male for the purpose of initiating a pregnancy that could result in the creation of a human fetus, or the birth of a human being.

A new ballot measure to remove the language which prohibits same-sex conception and the use of modified gametes will go before Missouri voters in November, 2008. ( [http://www.sos.mo.gov/elections/2008petitions/2008-014.asp/ text of proposed amendment] )

See also

* Female sperm - which makes possible same-sex procreation
* LGBT parenting
* Male egg
* Same-sex marriage
* Same-sex marriage in the United States
* Same-sex marriage legislation in the United States
* Same-sex marriage legislation in the United States by state

References

External references

* [http://www.samesexprocreation.com/ New Science of Same-sex Procreation]
* [http://www.eggandsperm.org/ Opposition to Same-sex Procreation]
* [http://www.bbc.co.uk/religion/ethics/samesexmarriage/against_4.shtml Same-sex marriage and procreation] - March 2006 brief review by the BBC
* [http://www.lmaw.org/freedom/tr_docs.htm Collection of court decisions] relating to same-sex marriage


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