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During a recent radio show, at approximately 2 minutes and 30 seconds into the broadcast, Charles Cooper is quoted as saying the following in federal appeals court arguments:

The key reason that marriage has existed at all in any society and at any time is that sexual relationships between men and women naturally produce children.

Which is quoted again in this student newspaper. This is being used in part as the basis for the legal argument against same-sex marriage in the United States.

This same argument was then used by Mr. Cooper to argue before the Supreme Court of the United States in case 12-144 on 26 March 2013 (see also here):

JUSTICE KAGAN: Mr. Cooper, could I just understand your argument. In reading the briefs, it seems as though your principal argument is that same-sex and opposite — opposite-sex couples are not similarly situated because opposite-sex couples can procreate, same-sex couples cannot, and the State's principal interest in marriage is in regulating procreation. Is that basically correct?

MR. COOPER: I — Your Honor, that's the essential thrust of our — our position, yes.

My issue is with the first part of the argument, namely that the key legal reason that marriage exists is due to procreation given the very wide brush that is used (i.e. all societies at any time in history). Is this in fact definitely the case or did Mr. Cooper in fact use too broad of a brush and there are notable historical exceptions to his claim?

  • @rjzii: I have a real problem making sense of the question altogether. I simply cannot make the mental step from "marriage" to "procreation". The legal implications of a marriage, today, are taxation (at least in Germany), and some legal rights regarding e.g. being allowed to visit your spouse in the ICU and getting medical information, or rulings regarding divorce. Most "procreation" related laws work outside of wedlock just as well. So I don't see where the point about marriage -> procreation is supposed to be, meaning I can't really tell whether that is the "key" point... – DevSolar Oct 22 '18 at 8:44
  • (ctd.) I also don't see where the state does "manage" procreation (unless we're talking China's "one child per family" policy. So... what are the claimants actually talking about? (Other than "we feel same-sex marriages are gross and are grasping for straws to keep them non-legal"?) – DevSolar Oct 22 '18 at 8:46
  • I see a huge difference between (a) the principal reason the cultural practice of marriage exists is to ensure any children are cared for - this is likely impossible to answer and (b) State's principal interest in legislating marriage is in regulating procreation - this is likely very hard to answer too. – Oddthinking Oct 22 '18 at 12:35
  • @DevSolar You might want to refer back to the question since I narrowed the scope down to just the United States where the argument was made in the context of legalization of same-sex marriage. This is the argument that was made by lawyers in the case, but my understanding is that there is no historical basis for the claim, thus the question here. – rjzii Oct 22 '18 at 14:08
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    @rjzii: I still don't get the line of thought followed by the claimants in the first place. "Marriage exists because of procreation, which the state wants to control." Huh? I beg your pardon? I don't even understand what is being claimed. It sounds like totally disjunct rambling. – DevSolar Oct 22 '18 at 14:26
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No it isn't.

Your first source states by itself that in the state of California any two people can get married, as long as they are of the opposite sex, even if they can't bring forth children, such as elderly couples and even prisoners.

More over, the Jewish law, on which the Judeo-Christian marriage is based says the following things:

Inability to bring children after 10 years of marriage is a reason to force divorce, but only for the man, and only if he doesn't have children already.

However, through history this was not enforced for couples that didn't want to get a divorce, even if their community wanted them to divorce. On the other hand, other couples used this as an excuse, even though they had other reasons to get a divorce.

The source tells about two separate occasions, one that was brought before Maimonides, where the community wanted to force a divorce on a childless couple, even though the couple didn't want to, and they were allowed to stay together if they wanted.

The other case, was in Tunis, where a case was presented to Rabi Itzhak Bar Sheshet Parpat (1326-1408), where a man with no children wanted to marry a 90 year old woman. The community wanted to stop the marriage on this cause, because they claimed that he was only after her money. The marriage however was allowed.

The source summarizes by saying that by law a couple must separate if they didn't have children after 10 years of marriage; however this was not enforced by Rabbis.

Also I want to add that it only valid for men with no children, so women and men that already have children can marry into a childless marriage.

The source for it is this page (also: Hebrew Version) written by Dr. Yoel Shiloh of Ashkelon College. The page shows its sources for each and every claim it makes, including citations from the sources.

The Catholic Church, also, doesn't see infertility as impediment to marriage:

Infertility (the inability to procreate children) is not an impediment to marriage

source

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    The claim is that the primary reason that the institution of marriage exists and that it is conveyed a legal benefit is that they tend to produce offspring. The claim is not that that all marriages are expected to produce offspring. So this answer does not address the claim. – Chad Mar 29 '13 at 18:22
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    @Chad, I do not agree with you. What I have showed is that even as far back as almost a 1000 years ago, people in traditional religious communities married for other reasons than procreation. So even if the concept of marriage was created to bear children (not sure that it's true), people have been using this institution for financial reasons, and partnership, without the involvement of children at all. – SIMEL Mar 29 '13 at 19:06
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    Your post is factually accurate. But it does not address the claim. There is no claim that marriage is only about children. Or that no one ever marries for anything else. FYI Marraige goes back at least 5k years to the ancient Egyptians and Babylonians. So all your answer shows is that for at the last 20% of the history of marriage there were other reasons. – Chad Mar 29 '13 at 19:21
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    Yes, Chad, exactly, my answer shows, that for the last 700 years, traditional marriage were used for reasons other than procreation. What the claimer (Cooper) says, is that traditional marriage can't stand marriage that don't result in children. While the opposite is true. – SIMEL Mar 29 '13 at 19:57
  • This claim is about the origin or marriage not what happend recently. – Chad Mar 29 '13 at 20:03
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To answer the quote,

The key reason that marriage has existed at all in any society and at any time is that sexual relationships between men and women naturally produce children.

I read that as true as far as it goes, if you mean "key biological reason" and not "key legal reason": I think we can agree than "men and women producing children" is a sine qua non of anything to do with multi-generational or historic human society ... without it there would be no human race, no society, no human customs (and no marriages).

people would have no reason to get married if not for kids

I agree that societies require people who may have children (e.g. men and women) to marry: partly so they'd know who would look after the children and the wife.

People who couldn't have children (e.g. homosexuals) were not required to "marry" in the same way.

My issue is with the first part of the argument, namely that the key legal reason that marriage exists

If you want to concentrate on legal reasons, marriage has evolved over millennia.

I would argue that the key and immediate reason is property: real estate, money, and labour. There's evidence for my theory, for example:

Children (if they are born of the marriage) become part of that financial interconnection. I suggest that children are secondary in importance to property (i.e. that property is closer to being the "key legal reason").

However, I don't see how to prove that: because what you consider to be "the key" to a complex issue is perhaps subjective or a matter of opinion, or too narrow (because there's more than one 'key' reason), or too ill-defined (what does "key" mean in this context?).

A further, important (but perhaps more recent) reason why people choose to legally marry (as opposed to having a marriage forced on them by society) is romantic love.

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    Perhaps this should be a comment and not an answer, as it's citations are just definitions on Wikipedia. (Even though I happen to think the response is well-reasoned.) – Larry OBrien Mar 29 '13 at 20:05
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The case in question is Hollingsworth v. Perry (2013) which ended up being a key court decision allowing for same-sex marriage in California and is closely related to Obergefell v. Hodges (2015). The Supreme Court of the United States (SCOTUS) over turned California Proposition 8 (Prop 8) which defined marriage as being solely between a man and a woman.

When the case went before the SCOTUS a number of amicus curiae briefings were filed that argued, in essence, marriage is traditionally limited to opposite-sex couples because the government has vested interest in procreation. The Family Research Council filed one example of this arguing,

The Court has recognized a substantive due process right to marry. Loving v. Virginia, 388 U.S.1 (1967), Zablocki v. Redhail, 434 U.S. 374 (1978), and Turner v. Safley, 482 U.S. 78 (1987). But the right recognized in these decisions all concerned opposite-sex, not same-sex, couples. Loving, 388 U.S. at 12, Zablocki, 434 U.S. at 384, Turner, 482 U.S. at 94-97. That the right to marry is limited to opposite-sex couples is clearly implied in a series of cases relating marriage to procreation and child rearing.

See Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) “Marriage and procreation are fundamental to the very existence and survival of the race”); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (liberty language in Due Process Clause includes “the right of the individual . . . to marry, establish a home and bring up children”); Maynard v. Hill, 125 U.S. 190, 211 (1888) (referring to marriage as “the foundation of the family and of society, without which there would be neither civilization nor progress”).

This argument first appeared in lower courts where expert witness Nancy Cott noted that "marriage has never been universally defined as a union of one man and one woman, and that religion has never had any bearing on the legality of a marriage" (transcript p.181-210). Legal interpretation of the argument also noted that the position was weak since Prop 8 was underinclusive since jurisprudence would require that it apply to opposite-sex couples that could not procreate. This position was echoed by editorials as well.

This point was then argued before the SCOTUS by Mr. Cooper on behalf of the Prop 8 supporters. The transcripts of the argument indicate that that the justices were skeptical, noting that opposite-sex couples that are incapable of procreation are still permitted to marry, for example,

JUSTICE KAGAN: Well, suppose a State said, Mr. Cooper, 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?

MR. COOPER: No, Your Honor, it would not be constitutional.

JUSTICE KAGAN: Because that's the same State interest, I would think, you know. If you are over the age of 55, you don't help us serve the Government's interest in regulating procreation through marriage. So why is that different?

MR. COOPER: Your Honor, even with respect to couples over the age of 55, it is very rare that both couples — both parties to the couple are, and the traditional — (Laughter.)

JUSTICE KAGAN: No, really, because if the couple — I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage.

(Laughter.)

MR. COOPER: Your Honor, society's — society'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 —

JUSTICE KAGAN: Actually, I'm not even —

JUSTICE SCALIA: I suppose we could have a questionnaire at the marriage desk when people come in to get the marriage — you know, Are you fertile or are you not fertile?

The difficulty in answering this question lies in the fact that the SCOTUS decided the case due to lack of standing by the petitioners as opposed to the merits of the case. Despite this it appears that the justices were highly skeptical of the argument as indicated by their questioning in the transcript.

The later Obergefell v. Hodges case actually gives us some context in which to interpret the SCOTUS decision though since the same argument was made. In the slip opinion in which the majority noted that,

The respondents also argue allowing same-sex couples to wed will harm marriage as an institution by leading to fewer opposite-sex marriages. This may occur, the respondents contend, because licensing same-sex marriage severs the connection between natural procreation and marriage. That argument, however, rests on a counterintuitive view of opposite-sex couple’s decisionmaking processes regarding marriage and parenthood. Decisions about whether to marry and raise children are based on many personal, romantic, and practical considerations; and it is unrealistic to conclude that an opposite-sex couple would choose not to marry simply because same-sex couples may do so. See Kitchen v. Herbert, 755 F. 3d 1193, 1223 (CA10 2014) (“[I]t is wholly illogical to believe that state recognition of the love and commitment between same-sex couples will alter the most intimate and personal decisions of opposite-sex couples”). The respondents have not shown a foundation for the conclusion that allowing same-sex marriage will cause the harmful outcomes they describe. Indeed, with respect to this asserted basis for excluding same-sex couples from the right to marry, it is appropriate to observe these cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.

...thus noting the legal coupling between marriage and procreation, although arguing that procreation cannot be the sole basis for marriage since opposite-sex couples have "many personal, romantic, and practical considerations." The dissenting argument by Justice Roberts also notes that,

The premises supporting this concept of marriage are so fundamental that they rarely require articulation. The human race must procreate to survive. Procreation occurs through sexual relations between a man and a woman. When sexual relations result in the conception of a child, that child’s prospects are generally better if the mother and father stay together rather than going their separate ways. Therefore, for the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond.

Further noting that,

This singular understanding of marriage has prevailed in the United States throughout our history. The majority accepts that at “the time of the Nation’s founding [marriage] was understood to be a voluntary contract between a man and a woman.” Ante, at 6. Early Americans drew heavily on legal scholars like William Blackstone, who regarded marriage between “husband and wife” as one of the “great relations in private life,” and philosophers like John Locke, who described marriage as “a voluntary compact between man and woman” centered on “its chief end, procreation” and the “nourishment and support” of children. 1 W. Blackstone, Commentaries *410; J. Locke, Second Treatise of Civil Government §§78–79, p. 39 (J. Gough ed. 1947). To those who drafted and ratified the Constitution, this conception of marriage and family “was a given: its structure, its stability, roles, and values accepted by all.” Forte, The Framers’ Idea of Marriage and Family, in The Meaning of Marriage 100, 102 (R. George & J. Elshtain eds. 2006).

In a similar dissenting argument, Justice Alito notes that,

If this traditional understanding of the purpose of marriage does not ring true to all ears today, that is probably because the tie between marriage and procreation has frayed.

As such, we may conclude that the justices accept as legal fact one of the purposes of marriage is to legitimize children that result from a couple. However, the majority decision in Obergefell v. Hodges rejects the legal argument that the sole legal and historical reason for marriage in the United States is to regulate procreation.

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The first statement is true but incomplete.

The key reason that marriage has existed at all in any society and at any time is that sexual relationships between men and women naturally produce children.

The production of children is not in itself a sufficient reason for the institution of marriage. Rather it is kinship that drives marriage (Wikipedia referenced for context, not evidence). In every society an individual exists within a web of kin relationships that create and manage mutual obligations. Marriage and parenthood are merely two types of kinship; there are many others.

The second statement is therefore incorrect.

[...] the State's principal interest in marriage is in regulating procreation.

This is wrong. The state's interest is in regulating kinship. The regulation of procreation would not address marriage, rather it would address forms of sexual intercourse that might lead to childbirth, which is not the same thing.

This article from Columbia Law Review considers this question in more detail. From the abstract:

While those justifications [of special status for sexual partners] revolve around the procreative potential of intercourse, it is the desire to limit procreation, rather than encourage it, that courts have invoked: The State's concern has been illegitimacy. Today, the prevalence and widespread acceptance of extramarital sex and birth control, accompanied by heightened respect for reproductive privacy, have rendered anachronistic the conception of marriage as a regulator of sex. The societal interests that remain are only loosely linked to intercourse, if at all: enforcing support obligations and stabilizing family units. Thus the continuing assumption that marriage is sexual--at the heart of the same-sex marriage debate and still embodied in law--has outlived its usefulness.

"Enforcing support obligations and stabilizing family units" is the regulation of kinship ties, in which the state has an ongoing interest.

  • Please provide some references to support your claims. – Oddthinking Oct 21 '18 at 11:19
  • I've added one. However on reflection I'm thinking that there is a lot of scope for opinion in the original question. – Paul Johnson Oct 21 '18 at 12:53
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    @Oddthinking, I think the "opinion" scope for this question is very strong, due to the word "key".... the "key thing" is the thing that unlocks something, and in this context that is going to be something imminent, not something historical. I suggest finding a question that's answerable on the history alone. – elliot svensson Oct 22 '18 at 15:01

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