I previously questioned how, after Windsor’s rejection of “moral disapproval” as a rational basis to support a law, Utah or any other state could rely on the “responsible procreation” argument to justify it’s same-sex ban. What arguments would Utah rely on? In their initial briefing to the Supreme Court seeking a stay, they relied on “responsible procreation” (framed as “adequate procreation.”
The Deseret News reports:
SALT LAKE CITY — Utah has the constitutional authority to define marriage, and the union of a man and a woman is the best setting in which to have and rear children, attorneys for the state argue in an appeals court brief filed just before midnight Monday.
They also contend that traditional marriage furthers the state’s interests in accommodating religious freedom and preserving social harmony in the state, while redefining marriage would be a recipe for social and religious strife.
“Redefining marriage as a genderless, adult-centric institution would fundamentally change Utah’s child-centered meaning and purpose of marriage,” according to a 120-page brief filed in the 10th Circuit Court of Appeals.
“A society can have but one understanding of marriage: It is either a uniquely man-woman institution, or it is not. Because man-woman unions are unique in their ability to produce children, maintaining the man-woman definition reinforces the child-centric view of marriage.” …
“Instead, the laws at issue here simply encourage a familial structure that has served society for thousands of years as the ideal setting for raising children,” Schaerr wrote. “Nothing in the federal Constitution prevents Utah’s citizens from making that choice.”…
Prevents further erosion of the traditional concept of marriage as being focused first and foremost on the welfare of children rather than the emotional interests of adults.
Increases the likelihood that children will be raised by their biological mothers and fathers — or at least a mother and father — in intact families.
Ensures adequate reproduction by parents willing and able to raise their children in stable homes.
So Utah is putting all of its eggs in the “responsible procreation” basket. (Get it. Eggs. Procreation. Put!?)
During arguments in Perry, Kagan seemed to cast serious doubt on the “procreation” Argument. In an Aspen event, Jeff Rosen posed a question about “responsible procreation” argument in the Prop 8 case to Justice Kagan. She ducked the question, much like the Justices did in Perry.
We didn’t have to get to that, we found no standing. We never had to confront that question of whether there was a sufficient interest in that case. That will be left for another time. There may or may not be differences between what we just decided, and what we may have to decide in the future.
Will the Supreme Court accept this argument? Because it is children, or bust, as for saving the Utah law.
Here are the key segments from the brief.
First, maintaining the man-woman definition helps prevent further erosion of the traditional concept of marriage as being principally a child-centered institution, one focused first and foremost on the welfare of children rather than the emotional interests of adults.
See Windsor, 133 S. Ct. at 2718 (Alito, J., dissenting) (discussing distinction between “conjugal” and “consent-based” views of marriage).
A society can have but one understanding of marriage: It is either a uniquely man-woman institution, or it is not. Because man-woman unions are unique in their ability to produce children, maintaining the man-woman definition reinforces the child-centric view of marriage. And by reinforcing that understanding, the State gently encourages parents to routinely sacrifice their own interests to the legitimate needs and interests of their children. Given its enormous benefits to children generally, the State has an important and compelling interest in encouraging selfless parenting.
Second, and more specifically, maintaining the man-woman definition increases the likelihood that children will be raised by their biological mothers and fathers—or at least a mother and father—in intact families. Common sense and a wealth of social-science data teach that children do best emotionally, socially, intellectually and even economically when reared in an intact home by both biological parents. Such arrangements benefit children by (a) harnessing the strong biological connections that parents and children naturally feel for each other, and (b) providing what experts have called “gender complementarity”—i.e., diversity—in parenting. Common sense and social science also teach that the second-best arrangement for children is to be raised by a biological parent and an adoptive parent of the opposite sex.
In a variety of ways explained in detail below, the traditional definition of marriage encourages parents and would-be parents to raise their children in one of these preferred arrangements. And in a variety of ways, redefining marriage in genderless terms would likely reduce, over time, the proportion of children being raised in one of those arrangements—thus placing at serious risk the welfare of children who will be raised in other arrangements as a result.
Third, maintaining the man-woman definition helps to ensure adequate reproduction by parents willing and able to raise their children in stable homes. By providing special privileges and recognition to sexual unions that, as a class, are uniquely capable of procreation, the State gently encourages that vital activity. Indeed, that is why the Supreme Court has often called man-woman marriage “fundamental to our very existence and survival.” Loving, at 12. The State has a compelling interest in ensuring adequate reproduction and, conversely, in avoiding a definitional change that (over time) could help send its birthrate below replacement levels—as has already happened in a number of nations and U.S. States that have adopted a genderless definition.