From ConLaw Blog:
With President Obama making news this week proclaiming his personal support for same-sex marriage, after an extensive “evolution,” it’s a good time to take a look at scholarship on the constitutional arguments.
Obama specifically mentioned same-sex couples “raising kids together.” But one of the more odd – – – at least on first review – – – arguments in support of state marriage being limited to opposite sex couples is that this is acceptable, but that opposite sex couples need more “encouragement” to marry. This is the so-called “responsible procreation” state interest. Perhaps it reached its most interesting articulation in the pronouncement of New York’s highest court, an opinion subject to a skewering analysis – – – and fun read – – – in John Mitchell’s Chatting with the Lady in the Grocery Store about Hernandez V. Robles, the New York Same-Sex Marriage Case, available on ssrn.
ConLawProf Julie Nice has now elaborated this odd notion in The Descent of Responsible Procreation: A Genealogy of an Ideology, forthcoming in Loyola Los Angeles Law Review, draft available on ssrn. With her usual scholarly integrity matched by innovative analysis, Nice “traces the genealogy of responsible procreation.”
She notes that same sex constitutional litigation has changed remarkably during the past several decades, with the amount of such litigation increasing substantially. With state justifications eroding, especially since blatant discrimination has become more disfavored, defenders of state bans on same-sex marriage have primarily leaned on the responsible-procreation defense, which surmises that same-sex couples already procreate responsibly and that the rights and responsibilities of marriage should be limited to furthering the goal of encouraging more responsible procreation by heterosexuals.