Procreation and SSM

Gabriel responded to my procreation argument (which in reality was an integration argument; procreation was only a basis for that integration).

His argument first attacked my position from two angles:

One, that there really is no state interest. He reasons that,

"It is clear from a number of court decisions that we possess the right as individuals to make our own decisions with regards to marriage and procreation. The government certainly has an interest in seeing that babies that are born are cared for to the best of our ability. It has an interest in helping those that wish to have babies to do so. It does not have an interest though in pressuring an individual to procreate. That choice belongs to the individual and not the government."

Here Gabriel misunderstands my argument. I did not argue that the government has an interest in pressuring people to procreate. I argued that it had an interest in promoting procreation; the law is merely a means of furthering that interest.

His argument is flawed however. The state is not pressuring anyone to do anything. It is not as if the State is closing off all other forms of relationships. People are free to procreate when they want and have sex with whom they choose. All the state is doing is providing incentives for people to enter into an arrangement that will have a better chance of resulting in procreation. The vast majority of marriages do result in the couple having children.

He also contended that "the policy of prohibiting same-sex marriage can hardly be said to be substantially related to this objective. " He reasons that the law is not sufficiently related to the objective because,

"by denying the recognition of one's same-sex marriage, one might instead seek out an opposite-sex partner, and then one might procreate with that partner, thereby having a child whereas one might not have had a child with a same-sex partner."

I fail to see how, even if one construes the point as he does, that the State's law is not substantially related to its objective.

And if we apply strict scrutiny, the law is not narrowly tailored because

"couples who have children in same-sex relationships are still denied marital recognition (incidentally doing a great deal of harm to the child) and the denial of recognition is no guarantee that anyone will seek out an opposite-sex spouse instead, much less an opposite-sex spouse with whom they will subsequently have a child. "

Same-sex couples cannot have children by themselves. Since that reality is a biological fact, we do not afford them the presumption of fertility. Although they can have children with outside help, there's no reason for the state to promote a situation where an outside actor must be involved in the couple's procreation.

I also fail to see why we must have a guarantee that someone will enter an opposite-sex marriage in order to promote such arrangements.

Another point he makes is that procreation is not the real reason behind the law. Even if we believe that procreation is not the reason behind these laws today, can we really argue that procreation was not the primary reason when these laws were created hundreds of years ago?

Gabriel ends his post by distinguishing between man-tree relationships and SSM. He argues that trees do not have rights and therefore can bring suits. So, using this logic, if we amended the Equal Protection clause to say a State cannot "... deny to any person or tree within its jurisdiction the equal protection of the laws," then the human could bring a suit on behalf of the tree? Is he saying that really a tree can marry, but it only cannot sue because it is not covered by the 14th Amendment? What kind of definition of marriage is being used here?

One last point: my analogy was not intended to be offensive. I was merely attempting to point out that any definition of marriage that extended the idea passed the procreation concept would have to explain why we should draw the line at relationships between two people.