The Magazine

Over to You, California

Maryland's high court upholds marriage.

Oct 8, 2007, Vol. 13, No. 04 • By DAVID M. WAGNER
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As the legal history nicely amassed by the Maryland court shows, the right to marry has always been linked to procreation. That link has been emphasized by the Supreme Court, or at least mentioned by it as an important component of the marriage right, even in those "privacy" cases most relied on by gay marriage advocates. That link has frayed once or twice, in the prison cases: In Skinner v. Oklahoma (1942), Mr. Skinner, being an inmate, had no immediate marriage prospects, but he might have had, when his sentence was up, so the part of his sentence that he was challenging--sterilization--plainly interfered with his right to marry and to procreate. And Turner v. Safley (1987) involved a desired jailhouse wedding: No conjugal visits or parenting were in immediate prospect. But neither inmate was a lifer, and so (as the Maryland court points out) consummation and childrearing were future possibilities. So the link between procreation and the right to marriage bends but never breaks.

The procreation connection will be a factor in California's In re: Marriage Cases, mentioned above. There, a group of family law and policy scholars (Hadley Arkes, Robert P. George, Leon Kass, James Q. Wilson, Steven Calabresi, and others), represented by attorney Joshua Baker of Maggie Gallagher's Institute for Marriage and Public Policy (iMAPP), argues in an amicus brief for the positive value to society of marriage as traditionally understood.

If they thought advocates on the other side would be hostile, perhaps they weren't prepared for those on their "own" side. California's attorney general--former Gov. Jerry Brown, considered a friend of gay rights when he was governor in the 1970s--has specifically repudiated iMAPP's brief--although as attorney general he is at least nominally supporting California's statute. The scholars' latest brief opens: "Our brief filed at the appellate level was inappropriately repudiated by the Attorney General, who seriously misunderstood our argument. We do not here assert the state's interest in marriage is grounded in negative views about gay people or their families. Instead we argue that marriage has a historic public and legal purpose which is not only rationally related, but deeply rooted in facts specific and unique to opposite sex couples."

The heart of the scholars' brief centers on an argument that Maggie Gallagher has often made in public debate: Society needs future generations; sex tends to make babies, even in the contraceptive era; and a child needs a mother and a father. Thus, the case for traditional marriage is hard to make to someone who thinks human extinction is desirable or a matter of indifference (a value judgment); or who thinks contraception is flawless (contrary to fact); or who thinks that mothers and fathers are interchangeable parenting units (the most common objection).

Instead, Brown's brief defending California's restriction of marriage to opposite-sex couples argues that marriage is a "constitutionally insignificant label" under California law, and that it confers no benefits not equally secured by domestic partnerships, which already exist. To win on that basis might not be to win at all.

Maryland's Conaway decision is an important step in the marriage debate; but so too will be the California court, and also legislation pending in New York and (ironically, considering the fuss being made in its courts) California.

David M. Wagner teaches constitutional law at Regent University and blogs at ninomania.blogspot.com.