The Genuine Article: A Subversive Economic Perspective on the Law's Procreationist Vision of Marriage


This Article provides a new perspective on the image of marriage that has emerged from the same-sex marriage debate. However flawed, the procreation rationale has enjoyed overwhelming success in recent same-sex marriage litigation. However absurd, the idea that same-sex marriage is a species of counterfeit has become so commonplace in the rhetoric surrounding same-sex marriage that it nearly escapes our notice. This Article argues that while neither the procreation rationale nor contemporary counterfeiting rhetoric makes much sense when considered in isolation, both make a great deal of sense when considered in concert. To that end, this Article looks at the historical casting of non-normative intimate relationships and reproductive practices (sodomy and miscegenation) in subversive economic terms (counterfeit) in order to explain the highly influential procreation rationale for same-sex marriage prohibitions. It ultimately suggests that the image of same-sex marriage (and same-sex reproduction) as a fraud that has emerged from the same-sex marriage debate, and from recent same-sex marriage litigation, brings us back full circle to sodomy and links up with the imagery of disgust that once surrounded sodomy regulation and the legal treatment of sexual orientation minorities through Lawrence v. Texas. It also suggests that the law’s procreationist vision of marriage might be viewed as at once hopelessly restrictive and daringly liberating.


Constitutional Law | Sexuality and the Law

Date of this Version

August 2006