It has taken me somewhat by surprise that the historic connections among “marriage” coitus and procreation takes others, especially young adults, by surprise. This isn’t just young adults who are “progressive” and presumptively friendly to the cause of same-sex marriage, nor are they uneducated. Some of them, I’m pretty sure, would blow me away on IQ tests.

But I know some history. Heck, I personally remember most of 64 years of it.

They’ve been taken in, it seems, by the superficially plausible argument that since we don’t require fertility testing for marriage, or do in-depth interviews (perhaps aided by polygraph?) about procreative intent, or ban marriages where the woman is over 50 and almost certainly now barren, the marriage/procreation nexus is just some damn argument bigots made up to deny others their rights.

Ross Douthat provoked such accusations by a Sunday column. Tuesday, he took one from Mother Jones as representative and responded in Marriage, Procreation and Historical Amnesia. I can think of no more apt title, so I stole it.

You don’t have to look very hard to find quotes (like the ones collected in this Heritage Foundation brief) from jurists, scholars, anthropologists and others, writing in historical contexts entirely removed from the gay marriage debate, making the case that “the first purpose of matrimony, by the laws of nature and society, is procreation” (that’s a California Supreme Court ruling in 1859), describing the institution of marriage as one “founded in nature, but modified by civil society: the one directing man to continue and multiply his species, the other prescribing the manner in which that natural impulse must be confined and regulated” (that’s William Blackstone), and acknowledging that “it is through children alone that sexual relations become important to society, and worthy to be taken cognizance of by a legal institution” (that’s the well-known reactionary Bertrand Russell).

Nor, perhaps more importantly, is it difficult to find various traditional features of marriage law that only make sense given the procreative understanding: For instance, the granting, not of divorces, but annulments in the case of marriages that weren’t or couldn’t be consummated — a provision with deep roots in the common law tradition, and one that remains in force today in contexts as diverse as California and England. (Current English annulment law went on the books all the way back in the dark medieval year of … 1973.)

Note, too, that by saying that a marriage left unconsummated through coitus is invalid, the common-law tradition makes precisely the distinction that Drum (and many others) find so self-evidently ridiculous and assume was obviously just invented for the gay marriage debate — a distinction between relationships that involve the reproductive act and those that don’t, with the former being valid marriages even when they’re infertile and the latter not.

Did you catch that? Today, one can still annul a marriage (or domestic partnership) in California if one partner was and remains incapable of “consummating” it!

For marriage historically, consummation meant coitus. The Lewinsky maneuver would not suffice. What it means for same-sex domestic partners is, er, beyond the scope of this blog (partly because I’m darned if I know).

The Heritage Foundation brief, by the way, includes the best summary I can recall of why we don’t make people run a gauntlet of tests for their procreative bona fides before they are allowed to marry. Since briefs are not copyrighted, I can quote at length, bolding what I find central:

Those who seek to redefine marriage to include homosexual relationships have been quick to point out that not all heterosexual married couples have children. Some such couples, because of age or infertility, are incapable of having children, yet marriage remains an option for them while it is not available to homosexual couples, even homosexual couples who, through artificial means, bring children into the world.

Under traditional rational basis review, however, the fit between classification and purpose need not be perfect or even close. A classification can be over-inclusive and under-inclusive and still be rational enough. Indeed, if all laws that were over- or under-inclusive were invalid, few laws would survive. Such a close means–end fit has never been required for the vast majority of laws that fall under rational basis review. Given the fact that the overwhelming number of the roughly four million children born in this country each year are born to heterosexual couples through ordinary means—children born to same-sex couples using artificial means account for less than one-half of 1 percent of the total—fostering an institution that is built around that biological fact cannot be viewed as irrational.

A number of other governmental interests have been advanced in the marriage cases that easily pass normal rational basis review as well. In addition to citing the unique procreative ability of heterosexual couples, BLAG has offered several in its defense of Section 3 of DOMA, including:

• Preserving a uniform definition of marriage across state lines for purposes of allocating federal benefits;
• Protecting the federal treasury and respecting prior legislative judgments in allocating marital benefits on the understanding that they would apply only to heterosexual married couples;
• Defending state sovereignty and democratic self-governance;
• Exercising caution to avoid “the unknown consequences of a novel redefinition of a foundational social institution”; and
• Expressing a preference for optimal parenting arrangements by encouraging child-rearing in a setting with both a mother and a father.

Because these are all at least legitimate governmental interests that are rationally furthered by laws defining marriage as being between one man and one woman, both DOMA and Proposition 8 should easily be upheld as constitutional if the Court continues to apply rational basis review.

Heightened Scrutiny. Under heightened scrutiny, the government’s task in seeking to uphold a statutory classification is significantly more difficult, and concessions made by the government about the strength of its interests (or lack thereof), as occurred in the Windsor case before the Department of Justice switched sides in the case, could conceivably determine the outcome—if, that is, the Court is willing to overlook the ethical problems presented by the Justice Department’s playing both sides of the case. One of the key issues, therefore, that the Court will confront in Windsor is whether the Second Circuit was correct to subject DOMA to heightened scrutiny.

There are strong reasons why the Court may reverse that holding. One is that the concept of “sexual orientation” is far more open-ended than other characteristics that are subject to heightened scrutiny. Defining “sexual orientation” is not a clear-cut undertaking.

The cases that are currently before the Court involve two lesbian couples (Windsor and Hollingsworth) and one gay couple (Hollingsworth), but other cases involving other sexual orientations would likely follow. Bisexuality is a recognized sexual orientation, and it is not hard to imagine a claim that marriage to both a man and a woman may be essential to fulfillment of a bisexual’s orientation; in fact, this happened recently in The Netherlands.[60] The limitation of marriage to two persons, and not more, seems more arbitrary than the limitation of marriage to the union of a man and a woman, given that other cultures have been known to allow polygamous marriages. With no logical stopping point, any limitation on marriage could be subject to heightened scrutiny—a prospect that the Court may wish to avoid.

If the Court nonetheless holds that some form of heightened scrutiny is appropriate, it will have to determine whether the governmental interests expressed in the statute itself are sufficient, even though those interests were later disavowed by the Department of Justice. Far from insubstantial, the importance of marriage as a union of a man and a woman as recognized in centuries of case law reflects a compelling interest that would arguably qualify under strict scrutiny, not just intermediate scrutiny.

As noted, Murphy v. Ramsey described marriage, “the union for life of one man and one woman,” as “the sure foundation of all that is stable and noble in our civilization.”[61] In 1952, the California Supreme Court recognized that “the institution of marriage” serves “the public interest” because it “channels biological drives that might otherwise become socially destructive” and “ensures the care and education of children in a stable environment.”[62] Justice Hugo Black referred to marriage as a bedrock institution that has long been recognized as “one of the cornerstones of our civilized society.”[63] And the U.S. Supreme Court in Loving described marriage as “fundamental to our very existence and survival.” It is hard to find an interest more compelling than that.

Heightened scrutiny also has a second step, however. The classification must be closely drawn (or even narrowly tailored, under strict scrutiny) to further the government’s important (or compelling) interest. Here, a classification that is significantly over- or under-inclusive may not pass constitutional muster. Here, also, the imperfect fit between procreation and heterosexual marriage becomes somewhat problematic, which is why the Second Circuit’s decision to subject the Defense of Marriage Act to intermediate scrutiny is so significant. Many commentators believe that if heightened scrutiny is to be applied, statutes like DOMA and Proposition 8 must necessarily be unconstitutional because of this imperfect fit.

Of course, the question of “fit” cannot be viewed in a vacuum. Whether a classification is “closely drawn” may depend on how onerous it would be to bring about a more perfect fit. Requiring fertility testing before marriage and inquisitor panels seeking to determine procreative intent of fertile couples would surely yield a more perfect fit, but the cost in terms of privacy and other values would undoubtedly be deemed unacceptable. As long as encouraging procreation in the stable environment fostered by heterosexual marriage is deemed to be a sufficiently important governmental interest, it is certainly not unreasonable for the Court to recognize that the definition of marriage as the union of a man and a woman advances that goal as closely as is consonant with basic expectations of privacy.

I’m under no illusion that I can now pronounce “Q.E.D.” and command universal acceptance, but I’ve at least contributed to the debate for those with an open mind – the lack of which, ironically, is often thrown as an accusation at traditional marriage supporters.

(Note, too, the allusion to the Justice Department conceding in litigation how weak governments’ interests in maintaining historic marriage are followed by the Justice Department switching teams. This is a nice illustration of why I worry about making major social policy based on court cases where one side may be advocated poorly by design or merely by being outmanned, and why I think the Supreme Court sometimes needs to take trial court “findings” with a grain of salt before it imposes some novel regime on the country.)

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The remarks made in this essay do not represent rigorous scholarly research, but I really do know a bit about history and constitutional law. Still, they are intended as topical stimulations for conversation among intelligent and informed people – or people who are a little better informed now than they were ten minutes ago. (Apologies to Gerhart Niemeyer)

Some succinct standing advice on recurring themes.