"The Family in America"    Online Edition    [SwanSearch] 

 Volume 15  Number 06


June 2001 



The Constitutionality of Legal
Preferences for Heterosexual Marriage 

By Richard G. Wilkins, J.D.

From The John L. Swan Library on Family & Culture:
Richard Wilkins is professor of constitutional law and managing director, The World Family Policy Center, Brigham Young University.

Throughout the ages, marriage between man and woman has been essential to individual development, social progress, and communal prosperity.1 Because of the important roles it has played in the evolution of modern society, marriage has become a "highly preferred" legal relationship.2 This unique status is reflected in the numerous statutory and other legal preferences that have been created for the marital relationship, ranging from special tax and employment benefits to laws dealing with property ownership and intestacy.3

Today, however, the "highly preferred" status of marriage is under attack on several fronts. In the face of mounting divorce and abuse rates and the increasingly large number of children born out of wedlock,4 some question whether marriage has any continuing social value.5 Others (often building upon the increasingly low esteem in which modern marriage is held) question why the historic legal preferences conferred on husbands and wives should not be conferred upon alternative partnership arrangements such as two men and two women who wish to enjoy the benefits of a "marital" relationship. These advocates, in fact, often assert that federal and state constitutions mandate the conferral of marital benefits on such partnerships.

This paper seeks to answer the question: Must the various legal preferences conferred on traditional marriage be extended to alternative partnership arrangements? The answer is no. The legal lines that have been drawn to protect and encourage the marital union of a man and a woman are principled and essential to furthering society’s compelling procreative interest. Indeed, once outside the union of a man and a woman, there is no principled constitutional basis for distinguishing between (or among) any form of consensual sexual behavior. Recognition of a constitutional right to same-sex marriage, therefore, would open the door to legally mandated conferral of all legislative preferences now reserved for marriage upon any form of consensual sexual coupling, no matter how idiosyncratic. Society should not encourage (nor perhaps could it endure) such an outcome.

Before analyzing the most common constitutional claims made by proponents of same-sex marriage, I would like to address one oft-made but inapt assertion. Television and radio talk shows, along with newspaper opinion columns, are often filled with variants of the submission that laws preferring heterosexual marriage "impose the morals of some upon all, and the law has no business answering moral questions."6 This unfocused claim ignores the reality that any and all legal schemes enforce some moral code. Must we enjoin all provisions of state and federal criminal codes which reinforce the moral and religious precept that "[t]hou shalt not steal"?7 Of course not. As Justice White wisely noted in disposing of the argument that sodomy laws reflect an unconstitutional moral judgment, "[t]he law...is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated…, the courts will be very busy indeed."8

Once beyond the alleged impropriety of legislative actions reflecting a moral judgment, advocates for the judicial recognition of alternative marital partnerships generally focus upon two constitutional provisions: the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution.9 Under both clauses, the constitutional analysis of legislative action is quite similar. If legislative line-drawing intrudes upon a "fundamental right" or "suspect classification," the challenged regulation will be subjected to close judicial scrutiny. By contrast, if a "fundamental right" or "suspect classification" is not involved, the legislative judgment (in the vast majority of cases) will be sustained.

The on-going debate whether legislative and other legal preferences for heterosexual marriage pass constitutional muster has already consumed thousands of pages in the law reviews.10 Somewhat surprisingly, however, virtually all of the literature concludes–on the basis of some variant of the due process or equal protection analyses explored above11–that current statutory or legal preferences for heterosexual marriage are either irrational or subject to purportedly fatal strict scrutiny.12

With due respect, and knowing that my opinion is in the decided academic minority, I submit that this consensus is seriously flawed. Laws preferring heterosexual marriage are not subject to strict scrutiny. This is because statutory and other legal preferences for heterosexual marriage are narrowly tailored to further the most imperative of all compelling governmental interests: "the very existence and survival of the race."13 Current widespread statutory and legal preferences for heterosexual marriage, therefore, are plainly constitutional.

Far from suggesting that statutory preferences for heterosexual marriage should be subjected to strict scrutiny, a straightforward reading of the opinions of the United States Supreme Court establish that rational basis review is the relevant judicial benchmark. Legislative preferences for heterosexual marriage do not intrude upon any fundamental right, nor do they impermissibly harm any suspect class. Accordingly, statutory and other legal preferences for heterosexual marriage need only be reasonably related to a rational objective; a hurdle that is readily cleared.

Any claim that preferences for heterosexual marriage intrude upon a "fundamental right" necessarily rest upon some variation of an assertion made by a plurality of the Supreme Court in Planned Parenthood of Southeastern Pennsylvania v. Casey.14 In the course of reaffirming the right to abortion first announced in Roe v. Wade, Justices O’Connor, Kennedy and Souter wrote that "[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life."15 Advocates of same-sex marriage essentially submit that this broadly phrased notion of liberty guarantees them the right to demand that the label "marriage"–as well as all of the statutory and legal preferences which follow that label–be attached to their own idiosyncratically defined sexual couplings. While such arguments might get an "A" for rhetoric, they flunk the demands of established constitutional law.

Not every personal preference connected with "one’s own concept of existence," "meaning" and "mystery" can (or ought to) be recognized as a "fundamental right." State policy makers, for example, can require policemen to adhere to dress and grooming standards–no matter how mysterious and meaningful a pony tail or beard might be to a particular law enforcement officer.16 Were it otherwise, our Constitution would cease to be the written document construed by Chief Justice Marshall in Marbury v. Madison17 and would become, instead, a mere vessel into which a bare majority of the Supreme Court could pour their personal predilections at will. The Supreme Court has never adopted such a free-wheeling notion of review under the due process clause.

Accordingly, and far from protecting all notions of liberty that may be central to an individual’s definition of "existence" and the "mystery of life," the due process clause protects only "those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition’"18 and "‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed.’"19 Moreover, the Court has required a "‘careful description’ of the asserted fundamental liberty interest."20 In short, even deeply held contemporary notions of "existence," "meaning" and "mystery"21 do not provide the judicial map for substantive due process excursions. Rather, "[o]ur Nation’s history, legal traditions, and practices provide the crucial ‘guideposts for responsible decision making.’"22

Nothing in our nation’s history, legal traditions, or practices supports the notion that "marriage" has been or should be expanded beyond the notion of a consensual coupling of a man and a woman.23 To the contrary, in the course of adjudicating marital rights or opining on the marital relationship, the Supreme Court has consistently linked its opinions to the traditional family structure of a man, a woman and their children by emphasizing the marital functions of conception,24 procreation,25 child rearing and education,26 and traditional family relationships in general.27

This analysis forecloses, I believe, any serious assertion that statutory preferences for heterosexual marriage unconstitutionally impinge upon a fundamental right under the due process clause of the United States Constitution. Other scholars have persuasively shown that the same conclusion is warranted for the assertion that such preferences unconstitutionally target a "suspect class" under the equal protection clause.28 Legal preferences for heterosexual marriage, therefore, are not subject to strict (and generally fatal) judicial scrutiny.

There are compelling reasons why heterosexual marriage is not subject to intrusive judicial review and its consequent judicial re-tooling. Marriage between a man and a woman provides the very foundation of society. The Supreme Court has had frequent opportunities to expound upon the fundamental importance of marriage to society.29 Over a century ago, the United States Supreme Court called marriage "the most important relation in life...having more to do with the morals and civilization of a people than any other institution...."30 More recently, the Court described marriage as 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...."31 However ornate the rhetoric, the Supreme Court’s discussions of marriage emphasize again and again a surpassingly important reality that (quite curiously) is often overlooked in the modern debates surrounding same-sex marriage: the unquestionable biological and historical relationship between marriage, procreation and child rearing.

As the Supreme Court noted in Skinner v. Oklahoma, "Marriage and procreation are fundamental to the very existence and survival of the race."32 The Court reemphasized this connection between marriage, procreation and child rearing in Zablocki v. Redhail.33 There, the Court placed the "decision to marry" on "the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships" precisely because "[if the] right to procreate means anything at all, it must imply someright to enter" the marital relationship.34 The very concept of marriage, in sum, is indissolubly linked to the societal imperatives of procreation and child rearing.

As a result, organized society has a substantial interest in drawing legal lines that responsibly channel and encourage procreation. This theme has dominated Supreme Court decisions from the beginning. All of the family cases (from the earliest to the latest) recite that individuals have a unique interest in marriage because of its close connection to procreation and child rearing.35 Judicial recognition of this individual right to marriage and procreation, however, necessarily demands recognition of a correlative social interest held by the state: a substantial–indeed compelling–interest in channeling and promoting responsible procreative behavior. Only individuals marry and procreate. Society has a surpassing interest in the conduct and outcome of these individual behaviors, because these activities are fundamental to society’s "very existence and survival."36

These interests persist despite modern claimants for alternative marital unions who seek to sever sexuality completely from any relationship to procreation and child rearing. Such a severance of sexuality from reproduction has profound sociological, moral and philosophical consequences that have been discussed by, among others, Professors Robert George, Gerard Bradley37 and Hadley Arkes.38 According to these scholars, hetero- sexual relationships (and, in particular, marital relationships) differ significantly from other possible sexual acts: sexual relations between a man and a woman bound in marriage are described as an "intrinsic (or...‘basic’) human good."39 This is due, in large part, to the fact that a heterosexual marital relationship has the biological potential for reproduction. Indeed, stripped of this reproductive potential, sexual relationships become nothing more than physically (and emotionally) agreeable genital stimulation.

One need not dispute that mutually agreeable genital stimulation can have emotional, mental and physical overtones. Such stimulation may be the result of–or perhaps result in–intense attachments to a sexual partner. Nevertheless, absent any relation to procreation, the sexual act is reduced to a purely sensory experience (whether the sensation is physical, mental or emotional).40

At this point, homosexual activists might argue that if marital law exists to further society’s procreative imperative, why should legal protection be extended to infertile (whether by choice or otherwise) heterosexual unions? The argument, however, is wide of the mark. Traditional marriage, unlike any other sexual relationship, furthers society’s profound interest in the only sexual relationship that has the biological potential for reproduction: union between a man and a woman.

Procreation requires a coupling between the two sexes. Sexual relations between a man and a woman, therefore, even if infertile, fundamentally differ from homosexual couplings. Homosexual couplings do not have the biological potential for reproduction: children are possible only by means of legal intervention (e.g., adoption) or medical technology (e.g., artificial insemination). Accordingly, and by their very nature, sexual relationships between a man and a woman (even if infertile) differ in kind from couplings between individuals of the same sex: heterosexual couplings in general have the biological potential for reproduction; homosexual couplings always do not. This potential procreative power is the basis for society’s compelling interest in preferring potentially procreative relationships over relationships founded primarily upon mutually agreeable genital stimulation.41

The institution of marriage furthers not mere sensory experience, but society’s "very…survival."42 The law, moreover, has never been ignorant of the vital distinction between purely sensory experience and procreation. Constitutional law, for its part, must take cognizance of this biologically obvious distinction. Constitutional decision making, above all other forms of judicial decision making, must be grounded in both principle and reason.43 When it comes to the constitutional definition of marriage, the undeniable and well-grounded principle that has guided mankind for generations (including state legislatures and the Supreme Court since this country’s founding) is straightforward: there is a fundamental difference between procreative sexuality and non-procreative sexuality.

Reproduction is the only human act for which the two genders undisputably require the other. A woman can do everything in her life without a man, except reproduce. Vice versa for a man. Thus, the sexuality that unites a man and a woman is unique in kind. This uniqueness, in fact, is the very basis of the religious, historical and metaphysical notion that "marriage" indeed joins two flesh in one.44

Furthermore, should constitutional law abandon the principle that reproductive sex has a unique role, we will be left with no basis upon which to draw principled constitutional distinctions between sexual relations that are harmful to individuals and/or society and relations that are beneficial. In fact, the same arguments that would seemingly require constitutional protection for same-sex marriage would also require constitutional protection for any consensual sexual practice or form of marriage. After all, once the principled line of procreation is abandoned, we are left with nothing more than sex as a purely sensory experience. The purely sensory experience cherished by any given sexual partnership will be no more or less precious than the purely sensory experience valued by another sexual partnership, no matter how socially repugnant. Should courts depart from the established heterosexual definition of marriage, there will be little (if any) principled ground upon which to deny marital status to any and all consensual sexual groupings.45 Bigamy, group marriage and–yes–even consensual incestuous coupling could all (and probably would all) accurately lay claim to the same legal entitlements.

Proponents of same-sex marriage, at this point, may nevertheless argue that they should be allowed to marry because a constitutional "zone of privacy" mandates that they be allowed to marry. This "zone of privacy," according to Justice Douglas, is a concept even "older than the Bill of Rights."46 While it is true that a zone of privacy prevents society from policing certain bedroom behavior, the privacy argument–applied to same-sex marriage–proves too much. Privacy rights prevent governmental interference with relationships that are, indeed, private. Therefore, to the extent that homosexual relationships are private, they may properly be shielded (at least to some extent47) by the "zone of privacy" from government intrusion. Transforming a privacy shield into a policy sword, however, turns the concept of "privacy" on its head: the assertion becomes not that homosexual conduct is private, but that it must be publicly acknowledged, condoned, recognized and normalized.

Same-sex advocates also assert that homosexual behavior harms no one, so the government has no interest in denying same-sex marriage. Nobody will be worse tomorrow, the argument goes, because their homosexual neighbors are married today. While this contention may have some appeal, it is short sighted. No one knows what impact same-sex marriage will have on society. Moreover, it certainly has not been shown that society will be improved by same-sex marriage. For centuries, societies have been built upon the foundation of traditional families,48 and as the family is weakened, so is society.49 For instance, in the 70’s, one could argue that the loosening of divorce laws would inflict relatively minor pain on society. Thirty years later, the evidence tells a compelling story of the increased injury society endures every time the divorce rate rises and the traditional family is weakened.50

Making divorce easier to obtain seemed progressive in the 70’s, but today, when divorce has become a national norm and most households consist of unmarried individuals with no children, we begin to grasp that the divorce revolution has imposed high social costs indeed.51 It may, in fact, be impossible to show, now, that same-sex marriage will cause immediate harm to society or to individuals in society, but it is undeniable that same-sex marriage is not based on procreation and a commitment to new life and future generations. The assertion that any sexual relationship (no matter how idiosyncratic and no matter how far removed from the continuation of life) has the same benefit as traditional marriage is simply unproved. Same-sex marriage, moreover, may well have severe long-term social consequences that cannot be predicted or foreseen at this time. One thing, however, does seem clear: as society becomes increasingly focused on individual and immediate transitory desires, rather than on the perpetuation of life and a commitment to the future, the consequences of same-sex marriage may be severe indeed.

The judicial system should not be tempted to stray from the course marked by history and tradition, a course that is soundly built on society’s interest in procreation. As Justice White astutely noted in rejecting the asserted constitutional right to consensual sodomy, "it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes....We are unwilling to start down that road."52 American courts, both at the state and federal levels, should be similarly unwilling to begin the task of judicially defining which sexual partnerships–among all the possibilities ranging beyond that of a man and a woman–must be legitimated with the long-honored title of "marriage."


Because legislative preferences for heterosexual marriage do not infringe upon fundamental rights or target a suspect class, such preferences need only reasonably further a rational objective: a legal test that virtually answers itself. Society has an undeniable interest in preferring heterosexual marriage over alternative sexual relationships. Heterosexual marriage, unlike same-sex partnerships, has the biological potential for procreation. There is no gainsaying the importance of this societal interest. As the Supreme Court has recognized, procreation involves the "very existence and survival" of mankind.53 Laws protecting and preferring heterosexual marriage are a principled and necessary means of furthering this most imperative of all governmental objectives.


1 See, e.g., Brigitte Berger, "The Social Roots of Prosperity and Liberty," 35 Society 44 (March 13, 1998) (available on Westlaw at 1998 WL 11168752).

2 Lynn D. Wardle, "A Critical Analysis of Constitutional Claims for Same-Sex Marriage," 1996 B.Y.U.L. Rev. 1, 29 (1996).

3 See Akiko Kawamura, "The Constitution and Family Values," 1 J. L. & Fam. Stud. 89, 94 (1999) ("Justice O’Connor, writing for the majority [in Turner v. Safely], articulated the reasons why marriage is ‘especially important to constitutional conceptions of liberty and citizenship.’ [citation omitted] First, marriage is a precondition for government benefits like Social Security. Second, marital status guarantees certain property rights under intestate succession laws. Third, in some states, marriage is a precondition for the legitimacy of children. Lastly, marriage is an expression of commitment that carries ‘spiritual significance’ because it is often ‘an exercise of religious faith as well as an expression of personal dedication.’" (quoting Turner v. Safely, 107 S.Ct. 2254 (1987); see also Todd Foreman, "Nondiscrimination Ordinance 101 San Francisco’s Nondiscrimination in City Contracts and Benefits Ordinance: a New Approach to Winning Domestic Partnership Benefits," 2 U. PA. J. Lab. & Employment L. 319, n.3 (1999) ("The many benefits of marriage include immigration rights, property rights, tax benefits, and employment benefits such as ‘partner insurance coverage, pension survivorship plans, and sick and bereavement leave.’") (quoting Philip S. Horne, Challenging Public- and Private-Sector Benefit Schemes Which Discriminate Against Unmarried Opposite-Sex and Same-Sex Partners, 4 Law & Sexuality 35, 48 (1994) (citation omitted).

4 See e.g., Maria Sophia Aguirre, Family, Economics, and the Information Society –How Are They Affecting Each Other? (visited February 28, 2000) http://www.worldcongress.org/gen99_speakers/ gen99_aguirere.htm ("For instance, one out of every three children born in the United States and over half of all children in Scandinavia are born out of wedlock.").

5 Some of the fiercest criticism regarding the continuing social utility of marriage comes from gay rights activists who seek to "deconstruct" the very concept of marriage. See e.g., Wardle, supra note 2, at 3 n. 2 (noting that both supporters and opponents of same-sex marriage agree "that it could dramatically alter the core social institutions of marriage and the family, as well as gender relations, sexual practices, and general social stability") (citing authority). Other more subtle, but perhaps more damaging, devaluation of marriage comes from modern academicians who consistently cast marriage in a negative light. For example, a recent survey of 20 college textbooks discussing marriage found that "current textbooks convey a determinedly pessimistic view of marriage," repeatedly suggesting "that marriage is more a problem than a solution." Norval D. Glenn, "Closed Hearts, Closed Minds: The Textbook Story of Marriage," 35 Society 69 (March 13, 1998) (available on Westlaw at 1998 WL 11168753).

6 For example, consider this excerpt published by a local Utah newspaper in its "Opinion" section:

"Equal rights for gay people. There is not a single, truly non-secular reason for denying same-sex couples the right to marry, to adopt children or to be foster parents, than can withstand any real objective scrutiny. It is simply a majority using the government to impose their unverifiable, religious beliefs on the many reasonable and responsible people with different religious beliefs and practices regarding God’s plan for us all. This denial is therefore an establishment of religion specifically prohibited by the U.S. Constitution, and an immoral infringement on the fundamental and equal rights of gay people. Stuart McDonald, Salt Lake City."

The Daily Herald, Feb. 11, 2000, at A6.

7 Exodus 20:15 (King James).

8 Bowers v. Hardwick, 478 U.S. 186, 196 (1986).

9 The Fourteenth Amendment provides in relevant part: "No State shall make or enforce any law which shall...deprive any person of life, liberty, or property, without due process of law." U.S. CONST. amend. XIV. The key word in this passage is "liberty," which has long been settled to be a substantive word–one conferring independent constitutional rights not otherwise expressly provided for in the text of the Constitution or its amendments. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 846 (1992).

This paper does not address claims based upon state constitutional law. Because the federal courts generally have been unreceptive to the submission that the United States Constitution provides special protection for homosexual conduct (see e.g., Bowers v. Hardwick, 478 U.S. 186 (1986)), litigants of late have rested same-sex marriage claims on state constitutional provisions, where success has been more forthcoming. See e.g., Baker v. Vermont, 744 A.2d 864 (Vt. 1999) (same-sex couples entitled to receive same marital benefits as heterosexual couples); Brause v. Bureau of Vital Statistics, No. 3AN-95-6562 CI, 1998 WL 88743 (Alaska Super. Ct. Feb. 27, 1998) (holding that one has a fundamental right to choose a life partner and that current marriage statutes constituted sex-based discrimination subjecting them to strict scrutiny); Baehr v. Lewin, 852 P.2d 44 (1993) (Hawaii’s marriage statute discriminated on the basis of sex and was therefore subject to strict scrutiny); Baehr v. Miike, CIV. No. 91-1394, 1996 WL 694235 (Haw. Cir. Ct. Dec. 3, 1996) (concluding after remand of Baehr v. Lewin that Hawaii’s marriage statute was unconstitutional). But see ALASKA CONST. art. I, § 25 ("To be valid or recognized in this state, a marriage may exist only between one man and one woman.") (enacted in response to Brause); HAW. CONST. art. I, § 23 ("The legislature shall have the power to reserve marriage to opposite-sex couples.") (enacted in response to Baehr v. Lewin and Baehr v. Miike). Alaska’s article 1, § 25 was upheld in Bess v. Ulmer, 95 P.2d 979, 988 (Alaska 1999). To date, the Hawaiian state supreme court has not rendered a final decision on Baehr v. Miike. While state courts may prove more receptive to same-sex marriage claims than the federal judiciary, an analysis of the possible claims arising out of 50 state constitutions is well beyond the purview of a paper prepared (like this one) for a 15-minute oral presentation. Moreover, the federal due process and equal protection analysis set out above is generally applicable to the outcome of legal arguments based upon analogous state constitutional provisions.

10 See, e.g., Lynn D. Wardle, "A Critical Analysis of Constitutional Claims for Same-Sex Marriage," 1996 B.Y.U.L. Rev. 1, 18-20 (1996) (noting the extent of the literature on the subject).

11 Professor Wardle specifically examines due process claims based upon the "right to marry," the "constitutional zone of privacy," and the "right of intimate association,"and equal protection claims which flow from analogies to racial and gender-based discrimination. Id. at 26-95.

12 See e.g., id. at 26, 62 (surveying the literature).

13 Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).

14 505 U.S. 833, 851 (1992) (plurality opinion of O’Connor, Kennedy and Souter, J.J.).

15 Id.

16 16 Kelly v. Johnson, 425 U.S. 238 (1976).

17 5 U.S. (1 Cranch) 137 (1803).

18 Planned Parenthood of Eastern Pennsylvania, 505 U.S. at 720-21 (quoting Moore v. City of East Cleveland, Ohio, 431 U.S., at 502, 503 (1977)). Accord Hawkins v. Freeman, 195 F.3d 732, 739 (4th Cir. 1999) ("The first step in [substantive due process analysis] is to determine whether the claimed violation involves one of those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed. The next step depends for its nature upon the result of the first. If the asserted interest has been determined to be "fundamental," it is entitled in the second step to the protection of strict scrutiny judicial review of the challenged legislation. If the interest is determined not to be "fundamental," it is entitled only to the protection of rational-basis judicial review") (internal quotes and citations omitted).

19 Id. (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)).

20 Id. (citing Reno v. Flores, 507 U.S. 292, 302 (1993); Collins v. City of Harker Heights, Texas, 503 U.S. 115, 125 (1992); Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 277-78 (1990)).

21 Id. at 851 (plurality opinion).

22 Glucksberg, 521 U.S. at 721 (quoting Collins, 503 U.S. at 125). Michael H. v. Gerald D., 491 U.S. 110 (1989), is a powerful example of the limits of "responsible decisionmaking." There, the Court addressed the constitutionality of a century-old California statute granting a nearly irrefutable presumption that a child born to a married woman was the child of the woman’s husband. See CAL. EVID. CODE ANN. § 621(a) (West 1989). The plaintiff established a 98% probability of paternity. Nevertheless, the lower courts, consistent with California law, refused to allow the plaintiff to establish a relationship with the child. In affirming, the Supreme Court denied the plaintiff’s substantive due process argument because, when analyzed in accordance with history and tradition, the values protected by the California law–namely the sanctity of the marriage relationship–outweighed any individual rights the biological father may have had in a child conceived out of wedlock. 491 U.S. at 126-130. Emphasizing the power of the legislature to govern and protect the marital union, the Court stated: "Where...the child is born into an extant marital family, the natural father’s unique opportunity conflicts with the similarly unique opportunity of the husband of the marriage; and it is not unconstitutional for the State to give categorical preference to the latter." Id. at 129.

23 Professor Eskridge has suggested that, while same-sex marriage has not been recognized in the West, same-sex marriage has been practiced and accepted in other cultures and countries throughout the world. See William N. Eskridge Jr., "A History of Same Sex Marriage," 79 Va. L. Rev. 1419, 1511 (1993). In his article, however, Professor Eskridge carelessly assumes that a state-sanctioned ‘same-sex union’ and ‘same-sex marriage’ are the same thing. A state- sanctioned union and marriage are not the same, and recent research supports the proposition that nations and cultures of the world recognize that marriage is between a man and woman. See Peter Lubin & Dwight Duncan, "Follow the Footnote or the Advocate as Historian of Same-Sex Marriage," 47 Cath. U. L. Rev. 1271, 1325 (1998).

24 See Griswold v. Connecticut, 381 U.S. 489, 496 (1965) (calling the "traditional relation of the family" a "relation as old and as fundamental as our entire civilization").

25 See Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) ("Marriage and procreation are fundamental to the very existence and survival of the race."); see also Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992) ("Our law affords constitutional protection to personal decisions relating to marriage, procreation....").

26 See Pierce v. Society of Sisters, 268 U.S. 510 (1925).

27 See Prince v. Massachusetts, 321 U.S. 158, 165 (1944); Cutshall v. Sundquist, 193 F.3d 466 (6th Cir. 1999) (stating that activities implicit in the concept of ordered liberty were "matters relating to marriage, procreation, contraception, family relationships, and child rearing and education") (quoting Paul v. Davis, 424 U.S. 693, 701 (1976)).

28 In general, a "suspect class" is characterized by an immutable trait (such as race) which subjects the class to unique social disadvantages. While some state courts have recently applied this analysis to same-sex marriage (Tanner v. Oregon Health Sciences University, 971 P.2d 435 (Or. App. 1998); Baker v. Vermont, 744 A.2d 864 (Vt. 1998)), any claim that homosexuality is "immutable" or that "gayness" (in today’s social milieu) imposes unique social disadvantages is unpersuasive. As Professor Lynn Wardle correctly states, while race–the classic suspect class–"is passive, homosexual behavior is active. Race is undeniably an immutable, biologically determined condition, which homosexual behavior has not been shown to be. Intuitively, there is a distinction between immutable racial classifications, which are logically irrelevant to legitimate policies and personal sexual behavior choices, which are of substantial social concern, especially regarding marriage." Lynn D. Wardle, "A Critical Analysis of Constitutional Claims For Same-Sex Marriage," 1996 B.Y.U.L. Rev. 1, 82 (1996). See also id at 75. See also Joseph Nicolosi, A. Dean Byrd, Richard W. Potts, "Retrospective Self-Reports of Changes in Homosexual Orientation: A Consumer Survey of Conversion Therapy Clients," 86 Psychological Reports 1071, 1083 (June 2000) (study concludes that "20% to 30% of the participants [in voluntary conversion therapy] said they shifted from a homosexual orientation to an exclusively or almost exclusively heterosexual orientation") (belying any assertion that homosexual orientation is "immutable").

29 See Griswold v. Connecticut, 381 U.S. 479, 486-99 (1965) (Goldberg, J., concurring); Reynolds v. United States, 98 U.S. 145, 164-65 (1878); see also Wardle, supra note 58, at 301 (noting that Griswold "underscored that marriage is linked with, and the basis for, the traditional family and child rearing").

30 Maynard v. Hill 8 S.Ct. 723, 726 (1888).

31 Griswold, 381 U.S. at 486.

32 316 U.S. 535, 541 (1942).

33 434 U.S. 374 (1978).

34 Id. at 386.

35 See supra notes 30-34.

36 Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).

37 Robert P. George & Gerard P. Bradley, "Marriage and the Liberal Imagination," 84 GEO. L. J. 301, 302 (1995).

38 Hadley Arkes, "Questions of Principle, Not Predictions: A Reply to Macedo," 84 GEO. L.J. 321 (1995).

39 Robert & Bradley, supra note 37, at 301-02.

40 Professors George and Bradley argue that the notion of sex as pure sensory experience compromises the important values of personal dignity and integrity:

"[M]arriage provides a noninstrumental reason for spouses, whether or not they are capable of conceiving children in their acts of genital union, to perform [sexual] acts. In choosing to perform nonmarital orgasmic acts, including sodomitical acts–irrespective of whether the persons performing such acts are of the same or opposite sexes (and even if those persons are validly married to each other)–persons necessarily treat their bodies and those of their sexual partners (if any) as means or instruments in ways that damage their personal (and interpersonal) integrity; thus, regard for the basic human good of integrity provides a conclusive moral reason not to engage in sodomitical and other nonmarital sex acts."


41 While same-sex marriage is not sanctioned in the West, Professor Eskridge has argued that same-sex marriage has been recognized and accepted in other non-western cultures and countries. See William N. Eskridge Jr., A History of Same Sex Marriage, 79 Va. L. Rev. 1419, 1511 (1993). However, careful review of Eskridge’s work reveals that other cultures have tolerated same-sex unions, but never sanctioned same-sex marriage. See Peter Lubin & Dwight Duncan, "Follow the Footnote or the Advocate as Historian of Same-Sex Marriage," 47 Cath. U.L. Rev. 1271, 1325 (1998).

42 Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).

43 See supra notes 30-34 and accompanying text; see also Learned Hand, The Bill of Rights 70 (1958) ("For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not").

44 Robert P. George, "Public Reason and Political Conflict: Abortion and Homosexuality," 106 Yale L. J. 2475, 2497 (1997) ("Professor Bradley and I defend an alternative conception of marriage–one which we believe to be reflected in traditional American and British marriage law, especially in the law governing consummation of marriage. We argue that marriage is a one-flesh (i.e., bodily, as well as emotional, dispositional, and spiritual) union of a male and a female spouse consummated and actualized by sexual acts that are reproductive in type. Such acts consummate and, we maintain, actualize the intrinsic good of marriage whether or not reproduction is desired by the spouses in any particular marital act, or is even possible for them in a particular act or at all.").

45 Professors George and Bradley cogently ask how society can, in principle, reject the claim of the pederast once it accepts the marital claim of the homosexual couple. See, George & Bradley, supra note 37 at 311.

46 381 U.S. 479, 486 (1965).

47 Bowers v. Hardwick, 478 U.S. 186, 196 (1986).

48 See Peter Lubin & Dwight Duncan, Follow the Footnote or the Advocate as Historian of Same-Sex Marriage, 47 Cath. U. L. Rev. 1271, 1325 (1998).

49 See Brigette Berger, "The Social Roots of Prosperity and Liberty," 35 Society 44 (March 13, 1998) (available on Westlaw at 1998 WL 11168752).

50 Judith S. Wallerstein, Julia M. Lewis & Sandra Blakeslee, The Unexpected Legacy of Divorce 294-316 (1st ed., Hyperion 2000) (asserting, among other things, on page 294, that modern easy access to divorce "has increased the suffering of children").

51 Id. As Dr. Wallerstein explains, during the past 30 years:

We’ve created a new kind of society never before seen in human culture. Silently and unconsciously, we have created a culture of divorce. It’s hard to grasp what it means when we say that first marriages stand a 45 percent chance of breaking up and that second marriages have a 60 percent chance of ending in divorce. What are the consequences for all of us when 25 percent of people today between the ages of eighteen and forty-four have parents who divorced? What does it mean to a society when people wonder aloud if the family is about to disappear? What can we do when we learn that married couples with children represent a mere 26 percent of households in the 1990s and that the most common living arrangement nowadays is a household of unmarried people with no children? These numbers are terrifying. But like all massive social change, what’s happening is affecting us in ways that we have yet to understand.

Id. at 295-296.

52 Bowers v. Hardwick, 478 U.S. 186, 196 (1986).

53 Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Zablocki v. Redhail, 434 U.S. 374, 383, 386 (1978) (recognizing the "right to marry is of fundamental importance" because "[i]f the right to procreate means anything at all, it must imply some right to enter the only relationship in which [the State] allows sexual relations legally to take place").





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