Marriage and Procreation: The Intrinsic Connection

by Patrick Lee, Robert P. George and Gerard V. Bradley
March 28, 2011

There is an intrinsic link between marriage and procreation, but this does not mean that infertile couples cannot really be married.

Activists seeking to redefine marriage typically claim that it is unfair—even arbitrary—for law and public policy to continue to honor the historic understanding of marriage as the conjugal union of husband and wife. Believing that marriage has a degree of malleability that our legal tradition has heretofore failed to recognize, they maintain that “excluding” same-sex partners from marriage violates a moral right possessed by every individual to marry a person of one’s choice (with that person’s consent). Defenders of conjugal marriage reply (in part) that marriage is not malleable in the ways that their opponents suppose. It is by nature oriented to procreation, and so defining marriage as a male-female union is not unjust discrimination. On a sound understanding of marriage, they argue, it is no more unfair to “exclude” same-sex partners from marriage than it is to “exclude” three (or more) polyamorous sexual partners from marriage. Indeed, it is not accurately characterized as exclusion at all.

Those who support defining marriage in such a way as to include same-sex partnerships deny that marriage has any intrinsic relation to procreation. When striking down Proposition 8 (which re-established conjugal marriage under California law after it had been invalidated by that state’s supreme court), Judge Vaughn Walker curtly argued: “Never has the state inquired into procreative capacity or intent before issuing a marriage license; indeed, a marriage license is more than a license to have procreative sexual intercourse.” The same argument was advanced earlier by Chief Justice Margaret Marshall in her majority opinion in Goodridge v. Department of Public Health, the ruling that struck down Massachusetts’ conjugal marriage law; replying to the contention that marriage’s primary purpose is procreation, Marshall confidently replied that:

This is incorrect…. General Laws c. 207 contains no requirement that the applicants for a marriage license attest to their ability or intention to conceive children by coitus. Fertility is not a condition of marriage, nor is it grounds for divorce. People who have never consummated their marriage, and never plan to, may be and stay married.

But this argument—that since infertile couples can marry, marriage is not oriented to procreation—is radically unsound. the rest