"The Family in America"    Online Edition    [SwanSearch] 

Volume 18  Number 12

 

December 2004

 

  

Marriage and Procreation: On Children as the First Purpose of Marriage

By Allan C. Carlson, Ph.D.*

*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 Council.

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 path.

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.[1]

Even Evan Wolfson, the acknowledged leader of the “gay marriage” movement, has agreed that:

At 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.[2]

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:

We 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.

He 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.[3]  Indeed, that usually faithful, conservative Supreme Court Justice, Antonin Scalia, in his 2003 dissent in Lawrence v. Texas, noted:

If 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.[4]

It is fair to conclude, I think, that the procreation argument is in serious trouble. 

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 Civilization.

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), Romans (6:1; 8:2), Philippians (3:18), Galatians (5:13),
2 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:

There 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.[5]

Other 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:

The 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].[6]

Within 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?

Christian Marriage  

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:

And 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….[7]

Genesis 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.”[8]  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.”[9]

Another 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 children.”[10] 

Still 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.[11]

Another 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.[12]

Or as another Stoic text explained:

…we have intercourse not for pleasure, but for the maintenance of the species.[13]

It 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 Rufus.[14]

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:

Wives, 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….[15]

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 explained:

What 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., procreation].

Augustine also insisted that the act of procreation included “the receiving of [children] lovingly, the nourishing of them humanely, the educating of them religiously.”[16]

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.”[17]     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:

We were 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.[18]

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”:

I like the earth this season, mourn in black,
My Sun is gone so far in’s Zodiack,
Whom whilst I ‘joy’d, nor storms, nor frosts I felt,

His warmth such frigid colds did cause to melt.
My chilled limbs now nummed lye forlorn;
Return, return sweet Sol from Capricorn;
In this dead time, alas, what can I more
Than view those fruits which through thy heat I bore.[19]

The “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:

The 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.[20]

As 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 Court reasoned:

[The 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.[21]

On Contraception  

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 the disappearance of the concept of illegitimacy in Sweden.

Regarding the first, Evan Wolfson writes in his new book Why Marriage Matters:

To hear 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.[22]

In 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 opinion concluded:

We deal 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.[23]

In truth, 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:

It is 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 child.[24]

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.[25]  [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].

On Illegitimacy  

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:

Birth itself shall be the basis of the family.
No differentiation whatsoever shall be made
between relationship by birth in or out of wedlock.

This 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.[26]

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.[27]

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 of Thomas),[28] 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 pursuing. 

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 the second.

Endnotes:

[1]  Quotations from: Johanna Grossman, “Are Bans on Same-Sex Marriage Constitutional?” at: http://writ.news.findlaw.com/grossman/2003.1120.html (10/4/2004).

[2]  Evan Wolfson, Why Marriage Matters: America, Equality, and Gay People’s Right to Marry (New York: Simon & Schuster, 2004): 75.

[3]  Dale Carpenter, “Gay Marriage and Procreation,” Bay Area Reporter (March 18, 2004).

[4]  Lawrence v. Texas (02-102) 41 S.W. 3rd 349 (2003).

[5]  In John T. Noonan, Contraception: A History of Its Treatment by the Catholic Theologians and Canonists (Cambridge, MA: Harvard University Press, 1986): 64.

[6]  Noonan, Contraception, p. 8.

[7]  Deuteronomy 7: 12-14; all Biblical texts cited are from The Revised Standard Version of 1952.

[8]  Genesis 22:17.

[9]  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.

[10]  Josephus, The Jewish War, edited and translated by H. St. John Thackery (Cambridge, MA: Harvard University Press, 1961): 2.120, 160.

[11]  Philo, The Special Laws 3.36; quoted in Noonan, Contraception, p. 54.

[12]  Seneca, Fragments, ed. Friedrich G. Haase (Leipzig:  Teubner, 1897); no. 84.

[13]  The Nature of the Universe, section 44; in Richard Harder, editor, Ocellus Lucanus (Berlin: Weidman, 1926).

[14]  Noonan, Contraception, p. 48.

[15]  Ephesians 5:22-23, 25, 31-32.

[16]  Augustine, On Genesis According to the Letter 9.7, CSEL 28: 276; in Noonan, Contraception, p. __.

[17]  Martin Luther, The Estate of Marriage [1520], in Luther’s Works. Vol.45: The Christian in Society (Philadelphia: Muhlenburg Press, 1962): 18.

[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 [1523], in Luther’s Works, Vol. 45, p. 155.

[19]  Found in: Harrison T. Meserole, Seventeenth-Century American Poetry (New York: New York University Press, 1968): 32-33.

[20]  Linda Gordon, Woman’s Body, Woman’s Right (London and New York: Penguin Books, 1974 [1999]): 107.

[21]  Commonwealth v. Allison, 227 Mass. 57, 62, 116 N. E. 266 (1917).

[22]  Wolfson, Why Marriage Matters, p. 79.

[23]  Griswold v. Connecticut, 381 U.S. 479 (1965).

[24]  Eisenstadt v. Baird, 405 U.S. 438 (1972).

[25]  Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992). 

[26]  Jenny Teichman, Illegitimacy: An Examination of Bastardy (Ithaca, NY: Cornell University Press, 1982): 153-61.

[27]  Teichman, Illegitimacy, pp. 168-71; and D. Bradley, “Marriage, Family, Property and Inheritance in Swedish Law,” International and Comparative Law Quarterly 39 (April 1990): 373-84.

[28]  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).

 

 

 

 

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