by Suzanne B. Goldberg, professor and director of the Center for Gender & Sexuality Law, Columbia Law School
Love and commitment have nothing to do with marriage. So said the state of Michigan to the U.S. Supreme Court in Obergefell v. Hodges on Tuesday while defending its ban on marriage for same-sex couples. Instead, marriage’s purpose as a civil status is to ensure adults take responsibility for their biological children, according to Michigan’s lawyer.
The difficulty for Michigan and the three other states seeking to preserve “defense of marriage” laws ― Kentucky, Ohio and Tennessee ― is that this procreation-focused definition of marriage is fundamentally unbelievable. Many people ― including gays and lesbians ― understand marriage to have “nobility and . . . sacredness,” as Justice Anthony Kennedy observed during the argument in Obergefell and its companion cases. Many states likewise recognize that marriage “enhance[es] the dignity of both parties,” Kennedy added.
The procreation-focused argument also makes no sense against the backdrop of the states’ marriage laws. There is no childbearing litmus test for people seeking to marry, as Justice Ginsburg pointed out. Nor do states restrict marriage to couples seeking to have children biologically rather than by adoption. And no state, Justice Stephen Breyer noted, favors biological children over adoptive children. Importantly, the state’s argument that marriage provides the “glue” needed to keep parents connected to their children also fails to explain why gay couples are excluded from marriage. As Justice Elena Kagan said, “It's hard to see how permitting same-sex marriage discourages people from being bonded with their biological children.”