Julie A. Nice


Just as societal practices related to marriage and procreation have changed remarkably during the past several decades, the amount of litigation regarding same-sex marriage has increased substantially. Over time, defenders of state bans on same-sex marriage have primarily leaned on the responsible-procreation defense, which surmises that same-sex couples already procreate responsibly and that the rights and responsibilities of marriage should be limited to furthering the goal of encouraging more responsible procreation by heterosexuals.

This Article traces the genealogy of responsible procreation. Rooted in religion, the defense was once rejected as a justification for limiting heterosexuals’ constitutional rights. Later, it appeared as a justification of the federal Defense of Marriage Act. Soon, courts split on its constitutionality: the high court of Massachusetts found it to be “unpersuasive” while other state appellate courts used it as a justification for their rejections of challenges to same-sex-marriage bans. Finally, with the first federal trial and subsequent Ninth Circuit decision on the constitutionality of California’s Proposition 8, the responsible-procreation defense succumbed to the overwhelming weight of evidence against its logic.

As a result, the emerging trend is that both executive officials and courts are rejecting the defense and concluding that same-sex-marriage bans are drawn not to further proper legislative ends but to make same-sex couples and their children unequal to everyone else.

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