Not long into the Supreme Court arguments Tuesday in Hollingsworth v. Perry, Justice Elena Kagan put her finger on the implausibility of the central constitutional argument made by the lawyers defending California’s Proposition 8, which defines marriage as between a man and a woman. In reading the briefs, she said, she was struck that the “principal argument” of gay-marriage opponents is that “the State’s principal interest in marriage is in regulating procreation.” She then offered a hypothetical. “Suppose a State said that, ‘Because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55.’ Would that be constitutional?”
Here was the response by the lawyer for Proposition 8 supporters, Charles Cooper:
"[S]ociety's interest in responsible procreation isn't just with respect to the procreative capacities of the couple itself. The marital norm, which imposes the obligations of fidelity and monogamy, Your Honor, advances the interests in responsible procreation by making it more likely that neither party, including the fertile party to that … marriage will engage in irresponsible procreative conduct outside of that marriage. Outside of that marriage. That's the marital—that's the marital norm."
In other words, if the Court does decide the Perry case on the merits, it will come down to this claim: Because only straight people can impulsively and accidently have illegitimate children out of wedlock, they need a stable institution of marriage to discourage them from doing so and to force them to focus on the consequences of their animalistic passions. But as Justice Kagan noted, the idea that denying marriage equality to gay couples would encourage monogamy and responsible procreation by straight couples is hard to follow, let alone to fathom.
It’s also hard to imagine that more than a handful of the people who voted for Prop 8 in California were moved by this “responsible procreation” argument, which first surfaced in the 1990s in law review articles and presentations by Lynn Wardle, a law professor at Brigham Young University, and Teresa Collett, a law professor at the University of St. Thomas. The real reasons that motivated a majority of California voters to oppose gay marriage were moral disapproval of homosexuality (which is sometimes religiously based) and a desire to maintain the traditional definition of marriage, because of a sense that the institution is embattled and deserves as much stability as possible. For better or for worse, however, the Supreme Court has ruled that both of these reasons are constitutionally illegitimate. In the 1996 Virginia Military Institute case, Justice Ginsburg held that maintaining tradition for its own sake is not a constitutionally permissible goal. And in striking down sodomy laws in the 2003 Lawrence v. Texas case, Justice Anthony Kennedy held that moral disapproval is not a legitimate justification for a law either. “The fact a State’s governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,” he wrote. That’s why Justice Scalia was correct to predict in his Lawrence dissent that “this effectively decrees the end of all morals legislation,” and would lead inevitably to the legal recognition of same sex marriage.
Because the real reasons that motivated California voters to oppose gay marriage have been ruled out of bounds by the Court, Proposition 8 supporters, during the trial and in their Supreme Court briefs as well as during the oral arguments, have been forced to rest their entire case on the state’s interest in promoting “responsible procreation.” But the argument is so esoteric that it’s hard to state succinctly in an English sentence, let alone a paragraph or two. Here’s an attempt in the brief filed by 19 states that define marriage as between a man and a woman, led by Virginia Attorney General Ken Cuccinelli:
"When two people become parents by way of artificial insemination, surrogacy or adoption, they have not procreated--at least not with one another. Hence, what is missing is society's interest in encouraging couples to consider and plan for the children that inevitably result from impulsive decisions to act on sexual desires. The sexual activity of same-sex couples implies no consequences similar to that of opposite-sex couples.
"Indeed, to the extent same-sex couples must take intentional, non-sexual action to become joint parents, such conduct vitiates the need for government involvement. States may assume that couples who by definition can acquire parental rights only through intentional conduct need no further societal approbation or regulation--they are already focused on the consequences of their actions. It is where the parenting may be unintentional, where couples act impulsively while ignoring the consequences, that social ordering is necessary."
In other words, gay couples already become parents in a responsible manner (because they have to plan in advance), so they don’t need the prestige of marriage to encourage good behavior.
This argument is so far-fetched that its leading proponent abandoned it after the Proposition 8 trial. During the trial, gay marriage opponents presented only two expert witnesses at trial, one of whom, David Blankenhorn, testified about the social impact of marriage. The trial judge held that Blankenhorn’s testimony was based entirely on personal opinion and therefore entitled to “essentially no weight” insofar as he claimed that allowing same-sex marriage would lead to the deinstitutionalization of marriage for straight people. After the trial, in a remarkable and courageous change of heart and mind, Blankenhorn acknowledged that he had failed to persuade the public that marriage was primarily about procreation and had concluded that the opposition to gay marriage had less to do with principle and more with anti-gay animus. As a result, he has founded an institution devoted to strengthening marriage for gay and straight couples.
Blankenhorn isn’t the only prominent former gay marriage opponent who has changed his mind about “responsible procreation.” The most significant brief in the Perry case may have been filed by Ken Mehlman, former head of the Republican National Committee under George Bush, on behalf of a group of prominent “social and political conservatives, moderates, and libertarians from diverse backgrounds,” including Clint Eastwood, Republican members of Congress, and former Bush-Cheney administration and campaign officials including Mary Cheney, Stephen Hadley, and Paul Wolfowitz. Mehlman, who announced in 2010 that he's gay, founded Project Right Side last November based on the premise that the GOP lost the 2012 presidential election partly because the party failed to reach out to gay Americans. In the brief, these well-known conservatives acknowledge that “Many of the signatories to this brief previously did not support civil marriage for same-sex couples; others did not hold a considered position on the issue.” They then explain why they changed their minds on the constitutional issue. “In the years since Massachusetts and other States have made civil marriage a reality for same-sex couples, amici, like many Americans, have reexamined the evidence and their own positions and have concluded that there is no legitimate, fact-based reason for denying same-sex couples the same recognition in law that is available to opposite-sex couples.”
“No legitimate, fact-based reason.” In other words, these conservatives have concluded that because the “responsible procreation” argument isn’t fact-based, and the other reasons for supporting Prop 8 aren’t constitutionally legitimate, Proposition 8 should be struck down.
Will the conservative justices on the Court experience an intellectual change of heart and mind similar to the one experienced by Blankenhorn, Mehlman, and the many other conservative and libertarians who formerly opposed the idea of a constitutional right to gay marriage? Anthony Kennedy’s jurisprudence suggests he would be inclined to recognize a right to gay marriage without much persuasion, whenever he decides the time is ripe. As for Chief Justice John Roberts, his questions at the argument suggested less sympathy for gay marriage on the merits than some commentators had hoped for. It also seems more likely after the argument that the Court could duck the question on jurisdictional grounds, which would leave in place the lower court opinion striking down Proposition 8 in California. But if and when the justices do confront the constitutionality of gay marriage on the merits, they’ll be forced to examine gay-marriage opponents' main justification for denying marriage equality: the promotion of “responsible procreation.” And as Justice Kagan gently suggested with her questions in Court yesterday, that argument deserves to be met with what legal scholar Charles Black once called "the sovereign prerogative of philosophers": laughter.
Jeffrey Rosen is the legal affairs editor of The New Republic.
Jeffrey Rosen is legal affairs editor at The New Republic and president and CEO of the National Constitution Center.