Charles J. Cooper, the lawyer representing Proposition 8 proponents, made a similar argument in his brief to the court. “It is the procreative capacity of heterosexual relationships — including the very real threat it can pose to the interests of society and to the welfare of children conceived unintentionally — that the institution of marriage has always sought to address.”
Those challenging Proposition 8 say that is an inadequate and incomplete view of what marriage means.
“In their 65-page brief about marriage in California,” write the lawyers for two same-sex couples seeking to overturn the proposition, “proponents do not even mention the word ‘love’ . . . This court has never conditioned the right to marry on the ability to procreate.”
Perhaps those lawyers were speaking to Justice Sonia Sotomayor. The 58-year-old justice wrote in her recent autobiography that she married her high school sweetheart with no intention of having children.
When she was young, Sotomayor was diagnosed with diabetes. She worried about her own health should she become pregnant and whether she would live long enough to raise a child.
“My projected longevity and the chance for a safe pregnancy had certainly improved” in the years since her diagnosis, Sotomayor wrote in “My Beloved World.” “Still, there remained the fear that I might not be around long enough to raise a child to adulthood.” She later divorced, although not because of that decision.
President Obama’s other Supreme Court pick, Justice Elena Kagan, has never married and has no children.
Chief Justice John G. Roberts Jr. and his wife, Jane, were both 41 when they married. Having children was always a goal, and four years later they adopted a daughter and a son, who were introduced to the nation when Roberts was nominated to the court in 2005.
Thomas has a son, Jamal, from his first marriage. But his marriage to Virginia Lamp Thomas, whom he wed in 1987, has not produced children. The pair concentrated on raising Jamal and later took in Thomas’s great-nephew, Mark Martin.
To Cherlin, who supports same-sex marriage, such examples render the procreation arguments “at least a century out of date.”
“Can the argument be that the way the chief justice had children is somehow second-class?” Cherlin asked.
But another marriage scholar, Ryan T. Anderson of the Heritage Foundation, said 41 states see the value in restricting marriage to heterosexual couples.
Allowing same-sex couples to wed does not “simply expand the existing understanding of marriage,” he said.
Instead, “it rejects the anthropological truth that marriage is based on the complementarity of man and woman, the biological fact that reproduction depends on a man and a woman, and the social reality that children need a mother and a father.”