University of Virginia Legal Working Paper Series
University of Virginia Public Law and Legal Theory Working Paper Series
Marriage as a Message: Same-Sex Couples and the Rhetoric of Accidental Procreation
Article comments
Forthcoming: Yale Journal of Law & Humanities (2009)
Abstract
In his dissent in the 2003 case Goodridge v. Department of Health, Justice Robert Cordy of the Massachusetts Supreme Court introduced a novel argument in support of state bans on same-sex marriage: that marriage is an institution designed to create a safe social and legal space for accidental heterosexual reproduction, a space that is not necessary for same-sex couples who, by definition, cannot accidentally reproduce. Since 2003, every state appellate court considering a same-sex marriage case has adopted Justice Cordy’s dissent until the recent California Supreme Court decision commonly known as The Marriage Cases. In case after case, courts have held that marriage allows states to send a message to potentially irresponsible procreators that “marriage is a (normatively) necessary part of their procreative endeavor” and that same-sex couples do not need marriage because they only procreate after considerable effort and forethought. This article examines the accidental procreation argument through the lenses of anthropological theory, history, literature, and constitutional law. We conclude that marriage has sometimes been used to channel male heterosexuality into reproduction, but to argue that this goal is the sine qua non of marriage is to vastly oversimplify its history in both law and culture. We then undertake a genealogy of the accidental procreation argument and speculate about its possible effects on the institution of marriage. We suggest that if courts continue to insist upon a definition of marriage that is so distinct from the actual practice of the institution, the law may actually be less and less influential in regulating intimate behavior.
Subject Area
Public Law and Legal Theory, Sexuality and the Law
Recommended Citation
Kerry Abrams and Peter Brooks,
"Marriage as a Message: Same-Sex Couples and the Rhetoric of Accidental Procreation"
(February 2009).
University of Virginia Legal Working Paper Series.
University of Virginia Public Law and Legal Theory Working Paper Series.
Working Paper 111.
http://law.bepress.com/uvalwps/uva_publiclaw/art111
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