Kentucky’s Bad Arguments on Marriage Equality
Natural procreation is not special, holy or sacrosanct, but all children deserve married parents.
A federal appeals court is hearing an appeal by the state of Kentucky of a ruling that struck down that state’s law banning same-sex marriage. In a brief filed with the court, the state confirms that the only arguments that can be offered for such a ban are really, really bad.
Man-man and woman-woman couples are not similarly situated to man-woman couples in a significant material aspect. Only man-woman couples have the ability to naturally procreate. As set forth more fully below, procreation is reasonably related to the object of Kentucky’s traditional marriage statutes. This distinction between same-sex couples and man-woman couples is critical and provides a lawful basis to treat same-sex couples differently than man-woman couples with regard to the institution of marriage without offending the Equal Protection Clause.
But why is this such a “critical” distinction? They don’t bother to say. But if their arguments about the importance of marriage in protecting children are true — and I think they are — why does it matter whether one procreates naturally or artificially? Do children conceived by artificial insemination or surrogacy deserve less protection? Do their lives not matter as much? And of course, lots of gay people have and will continue to procreate naturally anyway.