Document Type

Article

Publication Date

2013

Abstract

En route to finding the Defense of Marriage Act (DOMA) an unconstitutional violation of the Fifth Amendment's Equal Protection Clause, the Second Circuit Court of Appeals in Windsor v. United States gave short shrift to one of Congress's primary arguments in defense of the Act: that the federal government has a compelling interest in limiting federal marriage benefits to opposite-sex couples because traditional marriage has the laudable purpose-or function-of channeling the heterosexual sex that creates children into a way of life that provides the optimal environment for the rearing of those children. In other words, DOMA aims to minimize irresponsible heterosexual sex and procreation, thereby limiting the number of children born outside of marriage and minimizing the dependency of single parents and their children on state assistance. As a number of courts-whether state or federal, and whether operating under state or federal constitutional guarantees-have done in reviewing DOMA, the Second Circuit gave the "responsible procreation" argument only cursory treatment. Essentially, the Second Circuit reasoned (no doubt, correctly) that extending federal marriage benefits to all married couples-both sameand opposite-sex-will not affect the incentives of heterosexual couples to marry, and therefore should not threaten any state interest in encouraging marriage among heterosexuals who, by force of desire or nature, may be inclined to produce children as a result of their mutual lust. Finding no state interest sufficiently compelling to justify what appears to be an irrational classification, the court declared DOMA unconstitutional.

The responsible procreation theory fails not because it is bizarre or incoherent; it is considerably more coherent, albeit dated, than either the Second Circuit or traditional marriage's many critics seem willing to admit. Rather, it fails because the argument behind it rests on premises that are no longer true-if they ever were-and because the exclusions it suggests, however coherent, are now simply cruel and unwarranted.

Publication Citation

161 U. Pa. L. Rev. PENNumbra 179 (2012)

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