The Constitutionality of Legal
Preferences for Heterosexual Marriage
By Richard G.
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
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
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
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
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
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);
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
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
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
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
21 Id. at 851 (plurality opinion).
22 Glucksberg, 521 U.S. at 721 (quoting Collins, 503 U.S. at 125).
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,
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
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
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").
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.
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
"[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).
v. Oklahoma, 316 U.S. 535, 541 (1942).
43 See supra notes 30-34 and accompanying text; see also
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
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
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,
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,
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.
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").