Procreation: On Children as the First Purpose of Marriage
By Allan C. Carlson,
*This essay is adapted from a Family Policy Lecture given to the Family
Research Council, Washington, DC, on October 20, 2004. It appears here
with permission. Allan Carlson is President of The Howard Center and
Distinguished Fellow in Family Policy Studies at the Family Research
When Massachusetts officials, facing
the court case Goodridge v. Department of Public Health,
set out to defend that state’s marriage law from a challenge by seven
homosexual couples, their major line of defense was procreation.
Making babies, the state argued, was the first purpose of marriage. By
definition, same-sex partners could not create a child as a couple.
This was important, the argument continued, because children usually do best
when growing up with their two natural parents. Moreover, requiring
fertility tests before marriage by opposite sex couples would be cumbersome
and overly intrusive. It was better to let all otherwise qualified
opposite sex couples to marry than to go down that troubling regulatory
And the initial trial court, let us remember, agreed
with the state. The judge ruled that
the primary purpose of marriage, under Massachusetts law, was in fact procreation.
Accordingly, the court concluded that the state could reasonably
distinguish between homosexual claimants to marriage and those heterosexual
couples that were at least “theortically…capable” of procreation without
relying on “inherently more cumbersome” non-coital reproductive methods.
Even Evan Wolfson, the acknowledged
leader of the “gay marriage” movement, has agreed that:
first glance, the ‘basic biology’ argument seems to make some sense. After all, it doesn’t take more than a
fourth-grade health class education to know that men’s and women’s bodies in
some sense ‘complement each other’ and that when a man and a woman come
‘together as one flesh’ it often leads to procreation.
But of course, the trial court
decision did not survive appeal to the Massachusetts Supreme Judicial
Court. This higher court, on a 4-3
vote, dismissed the procreation argument, pointing to opposite-sex couples in which
the woman was over childbearing age or that were otherwise infertile. Could the state “rationally” tell them that
they could not marry? It could not. Indeed, the Court noted that, under state
law, even those “who cannot stir from their death bed may marry,” provided they
were of the opposite sex. Moreover,
infertility was not a ground for divorce, and by inference so not a bar to
marriage either. In addition, the Court
noted that Massachusetts law protected the parental rights of homosexuals and
allowed same-sex couples to adopt children.
It was irrational for the state so to enable “gay parenting” while also
denying the children involved the benefits of “family stability and economic
security” found in a marital home.
Evan Wolfson also moves on to dissect
the procreation argument, finding it actually “riddled with holes.” If procreation is the purpose of marriage,
he argues, then the marriages of Bob and Elizabeth Dole, John and Teresa Heinz
Kerry, and Pat and Shelley Buchanan should all be declared invalid. So should the marriage of the Father of our
County, George Washington, to Martha, which produced no children. Another same-sex activist, Dale Carpenter,
argues that if there was any merit to the procreation argument:
would require prospective married couples to sign an affidavit stating that
they are able to procreate and intend to procreate. If in, say, 10 years they had not procreated, we could presume
they are unable or unwilling to do so and could dissolve the marriage as
unworthy of the unique institution.
adds that since no one has really proposed this, or anything like it, it is
clear that the defenders of marriage “do not take the narrow procreationist
view of marriage very seriously.”
Instead, he says, the traditionalists impose another rule: “Nobody is required to procreate in order to
marry, except gay couples.” Such
discrimination, he implies, could not survive a test by the “equal protection
clause” of the Fourteenth Amendment. Indeed, that usually faithful, conservative
Supreme Court Justice, Antonin Scalia, in his 2003 dissent in Lawrence
moral disapprobation of homosexual conduct is ‘no state interest’ for purposes
of proscribing [private adult sex], what justification could there possibly be
for denying the benefits of marriage to homosexual couples? Surely not the encouragement of procreation,
since the sterile and the elderly are allowed to marry.
is fair to conclude, I think, that the procreation argument is in serious
My purpose here is to examine the bond
between marriage and procreation. Where
did this linkage come from? Why is it
no longer self-evident? What earlier
developments weakened the procreative nature of marriage? And: Is it possible to salvage this appeal
to procreation in the same-sex marriage debate?
Sex and Civilization
Turning to the first question—where
did the bond between marriage and procreation come from?—my answer is
simple: It is no less than the
foundation for what we might call the unwritten Sexual Constitution of our
Nearly two thousand years ago, what
would become Western Christian Civilization began to take form in a time of
great sexual disorder. The moral and
family disciplines of the old Roman Republic were gone, replaced by the intoxications
of empire. Slave concubinage flourished
in these years. Divorce by mutual
consent was easy, and common. Adultery
was chic, and widespread. Homosexuality
was a frequent practice, particularly in man-boy sexual relations. There was a callous disregard for infant
life, with infanticide a regular practice.
Caesar Augustus, worried about the plummeting Roman birthrate, even
implemented the so-called “Augustan Laws” in 18 B.C., measures that punished
adultery, penalized childlessness, and showered benefits on families with three
or more children. These laws may have
slowed, but did not reverse, the moral and social deterioration.
Between 50 and 300 AD, and out of this
same chaos, the Fathers of the Christian Church crafted a new sexual
order. Procreative marriage served as
its foundation. Importantly, they also
built this new order in reaction to the Gnostic heresies which threatened the
young church; indeed, which threatened all human life.
The Gnostic idea rose independent of Christianity, but
I am concerned here with so-called Christian Gnosticism. The Gnostics drew together myths from Iran,
Jewish magic and mysticism, Greek philosophy, and Chaldean mystical
speculation. More troubling, they also
appealed to the freedom from the law as proclaimed by Christ and Paul. In this sense, they were antinomians;
that is, they believed that the Gospel freed Christians from obedience to any
law, be it scriptural, civil, or moral.
The Gnostics claimed to have a special “gnosis,” a unique wisdom, a “secret
knowledge” denied to ordinary Christians.
They appealed to unseen spirits.
They denied nature. They
developed a mélange of moral and doctrinal ideas. But virtually all Gnostics did share two views: they rejected marriage as a child-related
institution; and they scorned procreation.
This heresy posed a grave challenge
to the early Christian movement.
Indeed, the Epistles are replete with warnings against Gnostic
teachings. In 1 Timothy 4, for example,
Paul writes that “some will depart from the faith by giving heed to deceitful
spirits and doctrines of demons….who forbid marriage.” In Jude 4 we read that admission into
the Christian community “has been secretly gained by…ungodly persons who
pervert the grace of our God into licentiousness.” 2 Peter tells of false prophets corrupting the young church,
“irrational animals, creatures of instinct,…reveling in their dissipation,
carousing with you. They have eyes full
of adultery, insatiable souls.” Similar
warnings or admonitions are found in 1 Corinthians (5:1-8; 6:12-13),
(6:1; 8:2), Philippians (3:18), Galatians (5:13),
Timothy (3:6-7), Ephesians (5:5-7), and Revelation
(2:14-15). Simon Magus, described in Acts,
chapter 8, was most probably a Gnostic, evidenced by his use of magic.
Relative to sex, Gnosticism took two
forms. One strand emphasized total
sexual license, endless sexual experimentation. Claiming the freedom of the Gospel, these Gnostics indulged in
adultery, homosexuality, and ritualistic fornication. The Church Father Clement described abuse of the eucharist by the
Gnostics in the church of Alexandria:
are some who call Aphrodite Pandemos [physical love] a mystical
communion….[T]hey have impiously called by the name of communion any common
sexual intercourse….These thrice-wretched men treat carnal and sexual
intercourse as a sacred religious mystery, and think that it will bring them to
the Kingdom of God.
Gnostics of this sort taught that “marrying and bearing [children] are from
Satan”; that sexual intercourse by “spiritual men,” in and of itself, would
hasten the coming of the Pleroma, or the fullness of the divine hierarchy of
the eons; and that the true believer
should have every possible sexual experience.
In marked contrast to this
polymorphous perversity, the other Gnostic strand totally rejected
sexuality. Tatian, for example, led a
faction called the Encratites, or “the self-controlled.” They saw marriage as corruption and
fornication, and demanded lifelong abstinence.
In the heretical Gospel According to the Egyptians,
Salome asks: “How long shall men die?” Jesus
is said to answer: “As long as you women bear children.” From this, these Gnostics concluded that
they could defeat death by ceasing procreation. They also celebrated androgyny, since a being without sexual
identity could obviously not be procreative. The heretical Gospel of Thomas has Jesus
saying: “Every woman who makes herself
male enters the Kingdom of Heaven.” The evil of the world denied the bearing of
children; the celibate alone would enjoy the Kingdom of God.
Considering these two Gnostic forms,
historian John Noonan summarizes:
whole thrust of the antinomian [Gnostic] current was to devalue marriage, to
deprive marital relations of any particular purpose, and to value sexual
intercourse as experience [alone].
the broad context of a Roman Civilization sliding into family breakdown and
sexual hedonism, the young Christian church faced as well this infiltration of
life-denying, socially destructive ideas into its own ranks. For Christian leaders, the great question
became: Just what is marriage for?
Answers came from several
sources. The Church Fathers noted, for
example, the fierce hatred shown by the Gnostics to the Hebrew Scriptures. From Judaism, accordingly, the Church
Fathers could see children as a Divine blessing for their parents and for the
community as a whole. As told in Deuteronomy:
because you harken to these ordinances, and keep and do them, the Lord your God
will keep with you the covenant and the steadfast love which he swore to your
fathers to keep; he will love you, bless you, and multiply you; he will also
bless the fruit of your body….You shall be blessed above all peoples; there
shall not be male or female barren among you….
was also filled with promises from God to the patriarchs that their wives
should be fruitful and that the Lord “will multiply your descendants as the
stars of heaven and as the sand which is upon the seashore.” Throughout the centuries, the Jewish sages
had declared that “One without children is considered as though dead.” Another early source stated that “he who
does not engage in procreation is as if he diminished the Divine image.”
Jewish inspiration may have been the small, ascetic Essene community, now famed
for compiling the Dead Sea Scrolls.
According to the First Century historian Josephus, members of this order
entered marriages “not for self-indulgence, but for the procreation of
another source may have been Philo, a Jew trained in Greek philosophy, who
expressed revulsion over pagan Roman pleasure-seeking. “Like a bad husbandman,” he wrote, “[the
homosexual] spends his labor night and day on soil from which no growth at all
can be expected.” The sexual act was
for procreation, Philo insisted.
Seeking a consistent sexual standard, he even reached a novel
conclusion, condemning marriage to women known to be sterile.
source for early Christian leaders was the Stoic ideal. Also filled by revulsion over the sexual
excesses of first century Rome, the Stoics—including philosophers such as
Epictetus and Musonius Rufus—summoned reason to control human desires and
behavior. Moderation in all things,
including sexuality, was their goal.
They also held that there was a natural law which gave purpose to
human life and which revealed acts unworthy of human beings. Sexual intercourse in marriage, the Stoics
concluded, found its clear and natural purpose in the propagation of the human
race. However, intercourse only for
pleasure was suspect. As the First
Century Stoic, Seneca, declared:
All love of another’s wife is shameful; so too, too much love of your
own. A wise man ought to love his wife
with judgment, not affection. Let him
control his impulses and not be borne headlong into copulation. Nothing is
fouler than to love a wife like an adulteress….Let them show themselves to
their wives not as lovers, but as husbands.
Or as another Stoic text explained:
…we have intercourse not for pleasure, but for the maintenance of the
is clear that these Stoic teachings had a particularly strong effect on the
Church Father, Clement of Alexandria.
Indeed, according to John Noonan, Clement’s influential work on the
purposes of Christian marriage was simply “a paraphrase” of the Stoic, Musonius
And of course, these early Christian
leaders also drew on the Gospels and the letters of Paul. The orthodox Gospel texts showed Jesus
attending the wedding feast at Cana and performing there his first miracle,
turning water into wine. Jesus also
condemned adultery and divorce. In 1
Timothy 2:15, Paul taught that “woman will be saved through bearing
children.” And in Ephesians 5, he equated
the marital love of husband and wife to the bond between Christ and his Church:
be subject to your husbands, as to the Lord.
For the husband is the head of the wife as Christ is the head of the
Church….Husbands, love your wives, as Christ loved the Church and gave himself
up for her…. ‘For this reason a man shall leave his father and mother and be
joined to his wife, and the two shall become one.’ This is a great mystery….
All of these sources led the early
Church Fathers to one conclusion: the purpose of marriage is procreation. While also celebrating lifelong chastity,
they refused to abandon the need for children.
As Justin explained in the mid-2nd Century: “We Christians either marry only to produce
children, or, if we refuse to marry, are completely continent.” Two centuries later, John Chrysotom taught
that “there are two reasons why marriage was instituted, that we may live
chastely and that we may become parents.”
In the year 400, Augustine, the Bishop of Hippo, wrote the book, The
Good of Marriage. He argued
that God desired man’s perpetuation through marriage. Offspring, he insisted, were the obvious and first “good”
of marriage (the other two being fidelity and symbolic stability
or sacrament). As Augustine
food is to the health of man, intercourse is to the health of the human race,
and each is not without its carnal delight which cannot be lust if, modified
and restrained by temperance, it is brought to a natural use [i.e.,
also insisted that the act of procreation included “the receiving of [children]
lovingly, the nourishing of them humanely, the educating of them religiously.”
A Lasting Morality
In this way, the bond of marriage to
procreation became the social and moral foundation for emerging Western
Christian Civilization. The sexual
disorders of the late Roman Empire and the anti-human fanaticism of the
Gnostics faced defeat by a new marital morality. And, as articulated by Augustine in the year 400 A.D., this moral
order lasted for another 1,500 years.
Even the tremors of the Protestant Reformation in the 16th
Century probably did more to strengthen, than weaken, this powerful tie between
procreation and marriage. Martin
Luther, for example, believed that God’s words in Genesis 1:28, “Be
fruitful and multiply,” represented more than a command; they were, he said, “a
divine ordinance which it is not our prerogative to hinder or ignore.” This led him to reject celibacy as a
special spiritual state and to encourage even priests, monks, and nuns to marry
and have children. As Luther wrote:
all created to do as our parents have done, to beget and rear children. This is a duty which God has lain upon us,
commanded, and implanted in us, as is proved by our bodily members, our daily
emotions, and the example of all mankind.
It is true that Protestantism did
inject more passion and intimacy into the marital bond than was considered
seemly by the early Church Fathers.
Still, these emotions remained tightly bound to procreation. Consider, for example, this poem written by
the Puritan wife, Anne Bradstreet, to her husband Simon, who—ironically—was
among the founders of the Massachusetts Bay Colony in 1630. It is entitled “A Letter to Her Husband,
Absent upon Publick Employment”:
the earth this season, mourn in black,
is gone so far in’s Zodiack,
whilst I ‘joy’d, nor storms, nor frosts I felt,
warmth such frigid colds did cause to melt.
chilled limbs now nummed lye forlorn;
return sweet Sol from Capricorn;
dead time, alas, what can I more
view those fruits which through thy heat I bore.
“fruits” referred to here are, of course, their children, the offspring of
Christian marital ardor and love.
Closer to our time, attitudes toward
birth control revealed the continuing strength of the bond between marriage and
procreation. Even in the late 19th
Century, the free-love feminists then emerging in New England refused to
endorse birth control. According to the
feminist historian Linda Gordon:
basis for this reluctance lies in their awareness that a consequence of
effective contraception would be the separation of sexuality from
reproduction. A state of things that
permitted sexual intercourse to take place normally, even frequently, without
the risk of pregnancy inevitably seemed to nineteenth-century middle class
women to be an attack on the family.
late as 1917, the unwritten Sexual Constitution of our Civilization—crafted
nearly two thousand years before—remained intact. No less a body than the Massachusetts Supreme Judicial Court
ruled that year in favor of a law prohibiting the distribution of
contraceptives. As the Massachusetts
law’s] plain purpose is to protect purity, to preserve chastity, to encourage
continence and self restraint, to defend the sanctity of the home, and thus to
engender in the State and nation a virile and virtuous race of men and women.
However, this appeal to “a virile and virtuous race of
men and women,” and implicitly to the tight bond between marriage and
procreation, would unravel over the balance of the 20th
Century. This story could be told many
ways; I want to focus simply on two episodes, one in America, one in another
Western land: specifically, the legalization of contraception here; and
disappearance of the concept of illegitimacy in Sweden.
Regarding the first, Evan Wolfson
writes in his new book Why Marriage Matters:
the opponents of gay equality today, one would not know that for decades the
law of the land…has been to recognize that marriage is not just about
procreation—indeed it is not necessarily about procreation at all.
this statement, he is unfortunately correct.
The U.S. Supreme Court’s 1965 ruling in Griswold v. Connecticut
stands in ever sharper relief as a profound break in American, and
Western history. At issue was a
Connecticut law prohibiting the use of contraceptives. Authored by Justice William O. Douglas, the
Court’s opinion overturned this measure.
In doing so, the Court also claimed to discover, for the first time,
“penumbras” around and “emanations” from the Bill of Rights, new legal spirits
which created “zones of privacy” hitherto unknown. [Curiously, such strange language would have been familiar to a
First Century Gnostic.] Almost cynically,
given what came later, the Court appealed to “the sacred precincts of marital
bedrooms” and to “the notions of privacy surrounding the marriage relationship”
to justify its decision. Indeed, the
with a right of privacy older than the Bill of Rights—older than our political
parties, older than our school system.
Marriage is a coming together for better or for worse, hopefully
enduring and intimate to the degree of being sacred….[I]t is an association for
as noble a purpose as any involved in our prior decisions.
Griswold represented a
direct assault on our civilization’s unwritten Sexual Constitution. As Wolfson correctly states, “The Court recognized [in Griswold]
the right not to procreate in marriage.” Indeed, only six years later,
in the case Eisenstadt v. Baird, the Supreme Court appealed to
the same “penumbras” and “emanations” from the Bill of Rights, to the same
“right of privacy,” in order to declare marriage largely empty of meaning:
true that in Griswold the right of privacy in question inhered in the
marital relationship. Yet the marital
couple is not an independent entity with a mind and heart of its own,
but an association of two individuals each with a separate intellectual and
emotional makeup. If the right of
privacy means anything, it is the right of the individual, married or single,
to be free from unwarranted governmental intrusion into matters so
fundamentally affecting a person as the decision whether to bear or beget a
With this decision, the “penumbras”
and “emanations” of the Constitution denied the substance of both marriage
and the natural law. A year later,
1973, the same secret knowledge led the Supreme Court to overturn the abortion
laws of all 50 states, creating a new “right to abortion” [again, a right that
would surely have pleased the baby-hating Gnostics]. In 1992, the Court appealed to “the right to define one’s own
concept of existence, of meaning, of the universe, and of the mystery of human
life” in its reaffirmation of abortion rights. [This language is very close to a definition
of the Gnostic idea]. And in 2003, the
Court in Lawrence v. Texas summoned the same “penumbras”
and “emanations” to find a right to uninhibited sexual expression, a right to
sodomy [yet again, the Gnostics would have understood and been pleased].
The decline and fall of the concept of
“illegitimacy” also points to the disappearance of the bond between marriage
and procreation. The cultural and legal
term, “illegitimate birth,” obviously sought to use fear and shame to help
confine sexual relations and childbearing to marriage. It was also part and parcel of our
Civilization’s unwritten Sexual Constitution.
And yet, most of us are bothered by the term today. To the contemporary way of thinking, it
punishes innocent children for the mistakes of their parents. Even so, the concept proved highly
resilient…until the end of the 20th Century.
There were earlier attempts to banish
the term. During the French Revolution,
the Law of 12 Brumaire (November 2, 1793) intended to sweep away all laws that
distinguished between legitimate and illegitimate children. “There are no bastards in France!” the
revolutionaries triumphantly declared in 1794.
And yet the change was opposed in the countryside, and never really
enforced by the Courts. The law was
repealed in 1803. In 1918, the
Bolshevik revolutionaries in Russia also abolished “illegitimacy,” with the new
Soviet Family Law Code stating:
itself shall be the basis of the family.
No differentiation whatsoever shall be made
between relationship by birth in or out of wedlock.
was part of the larger Communist project to eliminate marriage and the
natural family altogether. As Nicolai
Bukharin told the 1924 Congress of the Communist Party of the Soviet Union:
“The family is a formidable stronghold of all the turpitudes of the old
regime.” It had to go. Divorce on request by either spouse and the
equation of cohabitation with marriage were other parts of the Communist
project. The law also imposed a duty of
support on unmarried fathers. And
yet, these reforms did not work.
Child abandonment grew common.
Vagrant children filled the land.
In the end, even the political monster Joseph Stalin acknowledged failure. A new Family Code, introduced in 1944,
specified that only a registered marriage created rights and duties between
husband and wife, parent and child. The
idea of “illegitimacy” returned.
However, a far more successful project
to abolish “illegitimacy” occurred in Sweden during the last three decades of
the 20th Century. It
succeeded only by simultaneously deconstructing marriage and
substituting a massive welfare state for the home.
Back in 1915, Sweden had already
removed the terms “legitimate” and “illegitimate” from its legal codes,
inserting “born in/out of wedlock” instead.
While of moral, symbolic, and long-term importance, the change had no
immediate impact. Into the early
1960’s, Swedish family life remained relatively strong and vital. It was only during Sweden’s so-called “Red
Years,” 1967-76, that real changes occurred.
Under heavy feminist influence, the Democratic Socialist government set
out to abolish the roles of husband and wife, to make divorce easy, to
eliminate marriage as an economic unit, and to raise the status of cohabitation
to equality with marriage. Notably, in
1976—at the very end of this radical reform—the government deleted the terms
“born in/out of wedlock” from all its statutes. This fully severed the legal bond between marriage and
procreation. To make this work, the
Social Democrats also had to expand the welfare state, with government now
supplying most of the support and care of children once given by families, from
universal health insurance to massive day care subsidies to state child
allowances to school meals. With the
home so dismantled, and with procreation already unrelated to marriage, it was
an easy and logical step to extend marriage-like “registered partnerships” to
same-sex couples in 1995.
The leveling “right of privacy” in
America; the triumph of socialism over the home in Sweden: both contributed to
the successful repeal of the Sexual Constitution of Western Civilization, which
had rested on the fundamental bond of marriage to procreation.
The New Gnostics
So where are we left? It is important to realize that the opponent
we now face is something at once new and different, and as old as time. The Gnostic idea is back, in new guise. It shapes everything from modern feminist
theology (consider Elaine Pagel’s bestselling Beyond Belief: The Secret Gospel
to popular literature (the Da
Vinci Code, nearly one hundred weeks on the New York Times
best-seller list, is an openly Gnostic text), even to—as I have implied—the
reasoning of our highest court. Nothing
that is natural, traditional, cultural, religious, social, or moral is safe
from the Gnostic idea. And no appeal to
nature, to history, to civilization, or to human experience of any kind can
prevail against the “special knowledge” of the modern antinomians who dominate
our Supreme Court.
Can we still defend the purpose of
marriage as procreation? No, not in the
current Constitutional climate. It is
now clear that the “right of privacy,”
conceived by the Supreme Court nearly four decades ago, is the enemy of both
marriage and procreation separately, and is especially hostile
when they are united. It is also
clear that we lost the key battles in defense of this union decades ago, long
before anyone even imagined same-sex marriage.
And we lost these battles over questions that—if we be honest—relatively
few of us are really prepared to reopen.
How many are ready to argue for the recriminalization of
contraception? How many want to argue
for a strict legal and cultural imposition of the word, “illegitimate,” on
certain little children? One might
imagine a new effort to repeal the “equal protection” clause of the 14th
Amendment tied to language that denied the existence of “the right of
privacy.” But even before facing the
enormous political issues so raised, it would be unlikely to work. The Supreme Court has made clear that the
subversive “right of privacy” is older and more fundamental than the
Constitution itself, and that it “emanates” from the “penumbra”of the Bill of
Rights. Mere words—even of a new
Amendment—are unlikely to contain these “penumbras” and “emanations.”
Instead, we are left for now with
strictly political options: the raw exercise of influence. Both those bills that would strip the
Federal courts of jurisdiction over marriage and the proposed Federal Marriage
Amendment could build firewalls around the already battered institution of
marriage, protecting it from further depredations by the “right of
privacy.” I favor both approaches,
whichever might work politically. Of
course, there is no guarantee that a future Supreme Court might not rule that
the “right of privacy” and the “equal protection” clause trump these
innovations as well, so bringing on a Constitutional crisis. All the same, both efforts are worth
Outside the Box
Are there other political acts that
would reconnect procreation and marriage?
Perhaps, if we are prepared to think “outside the box.” For example, we could turn one of our opponents’
key arguments back on them. Perhaps we
should restrict some of the legal and welfare benefits of civil marriage
solely to those married during their time of natural, procreative potential:
for women, below the age of 45 or so (for men, in the Age of Viagra, the line
would admittedly be harder to draw).
The idea is not without recent political precedence. Back in 1969, Representative Wilbur
Mills—the then powerful Chairman of the House Ways and Means Committee—wanted
to respond to complaints by unmarried adults that existing tax law unfairly
favored the married. It was true
that the existing practice of “income splitting” by married couples on their
joint tax returns, in the context of high marginal tax rates, did give a strong
tax benefit to marriage. Importantly,
though, Mills stated that he wanted to preserve this “marriage bonus” for the
young and fertile, while still helping those whom he labelled (in now archaic
language) as “spinsters.” Accordingly,
he proposed maintaining the benefits of income splitting only for married persons
under the age of 35. (This approach, I
do note in passing, went nowhere. The
Nixon Administration and Congress chose instead to reduce the benefits of
income splitting for all married persons; and they so unwittingly created the
“marriage penalty” with which we still grapple today).
Another, and perhaps more realistic
way to rebind marriage and procreation would be, counter-intuitively, to take
some of the benefits currently attached to marriage and reroute them instead
through children. Allow me one
practical example here. Whatever the
future, it is likely that most households with two or more children will
continue to be married-couple, natural parent homes. These are still, and always will be, the places most open to what
we once called “a full quiver.” We
could encourage them by tying retirement benefits to family size: that is, the
more children that a couple brought into the world, the higher their later
monthly Social Security benefit. Or, we
could create a new tax credit against payroll taxes: rebating, say, 20 percent
of the current 15.3 percent tax facing parents for each child born. Again, these ideas would indirectly favor
child-rich homes; and most of these, in the American context, would predictably
contain a married couple.
These approaches are, admittedly,
tangential. However, bolder steps are
all but impossible until we see profound changes in the membership and
thinking of our highest court; and until we as a people actually want
to restore the unwritten Sexual Constitution of our Civilization,
including the hard parts. It may be
that the first requirement—changing the court—will prove easier to achieve than
 Evan Wolfson, Why Marriage Matters: America,
Equality, and Gay People’s Right to Marry (New York: Simon &
Schuster, 2004): 75.
 Dale Carpenter, “Gay Marriage and
Procreation,” Bay Area Reporter (March 18, 2004).
 Lawrence v. Texas (02-102) 41 S.W. 3rd
 In John T. Noonan, Contraception: A History of Its
Treatment by the Catholic Theologians and Canonists (Cambridge, MA:
Harvard University Press, 1986): 64.
 Noonan, Contraception, p. 8.
 Deuteronomy 7: 12-14; all Biblical
texts cited are from The Revised Standard Version of 1952.
 Babylonian Talmum Nedarim 64b and
63b. Cited in Lewis D. Solomon, The
Jewish Tradition, Sexuality and Procreation (Lanham, MD: University
Press of America, 2002): 89-91.
 Josephus, The Jewish War, edited
and translated by H. St. John Thackery (Cambridge, MA: Harvard University
Press, 1961): 2.120, 160.
 Philo, The Special Laws 3.36; quoted in
Noonan, Contraception, p. 54.
 Seneca, Fragments, ed. Friedrich
G. Haase (Leipzig: Teubner, 1897); no.
 The Nature of the Universe, section
44; in Richard Harder, editor, Ocellus Lucanus (Berlin: Weidman,
 Noonan, Contraception, p. 48.
 Ephesians 5:22-23, 25, 31-32.
 Augustine, On Genesis According to the
Letter 9.7, CSEL 28: 276; in Noonan, Contraception, p. __.
 Martin Luther, The Estate of Marriage
, in Luther’s Works. Vol.45: The Christian in Society (Philadelphia:
Muhlenburg Press, 1962): 18.
 Martin Luther, An Exhortation to the Knights of
the Teutonic Order That They Lay Aside False Chastity and Assume the True
Chastity of Wedlock , in Luther’s Works, Vol. 45, p. 155.
 Found in: Harrison T. Meserole, Seventeenth-Century
American Poetry (New York: New York University Press, 1968): 32-33.
 Linda Gordon, Woman’s Body, Woman’s Right
(London and New York: Penguin Books, 1974 ): 107.
 Commonwealth v. Allison, 227 Mass. 57,
62, 116 N. E. 266 (1917).
 Wolfson, Why Marriage Matters, p.
 Griswold v. Connecticut, 381 U.S. 479
 Eisenstadt v. Baird, 405 U.S. 438
 Planned Parenthood of Southeastern Pa. v.
Casey, 505 U.S. 833 (1992).
 Jenny Teichman, Illegitimacy: An Examination of
Bastardy (Ithaca, NY: Cornell University Press, 1982): 153-61.
 Teichman, Illegitimacy, pp. 168-71;
and D. Bradley, “Marriage, Family, Property and Inheritance in Swedish Law,”
and Comparative Law Quarterly 39 (April 1990): 373-84.
 Elaine Pagels, Beyond Belief: The Secret Gospel
of Thomas (Westminster, MD: Random House, 2003); also Rosemary Radford
Ruether, Christianity and the Making of the Modern Family (Boston:
Beacon, Press, 2000).