Family Matters

Douglas R. Kmiec, professor of constitutional law at Pepperdine University, is the author of "Cease-fire on the Family" and "Marriage and Family" in the recent book "Never a Matter of Indifference."

Neither law nor politics provides a readily accessible vocabulary on the question of same-sex marriage. For example, the legal concept of equal protection of the law is not self-defining. To know whether it applies to same-sex marriage, it’s first necessary to know whether gays and nongays can similarly produce the individual and social good associated with marriage.

Now that the California Supreme Court has ordered a halt to gay marriages and announced its intention to rule on their legality, what are the relevant considerations? For many, the answer is informed by religious belief that affirms the dignity of all people but disapproves of homosexual conduct because it is contrary to revelation, church teachings, etc. As a matter of religious freedom, religiously informed views of marriage are important and entitled to be heard in legislative debates. But because we live in a religiously pluralistic and secular society, we must also seek answers from nonreligious sources.

Any claim about marriage anchored in distaste, hatred or mean-spiritedness is automatically out of bounds. Gays as individuals or as couples are citizens entitled to the respect due all people. It is abundantly obvious that whether gay or straight, the human personality yearns for friendship and community.

It is here, however, where public opinion consistently draws a line against same-sex marriage. No one on either side of the debate contends that same-sex marriage is biologically compatible with reproduction. Absent artificial insemination or some other third-party means of conception, homosexual couples cannot physically produce children. It is upon this pivotal point, with all its implications for family and society, that the debate turns.


Gay couples tend to be childless, and even when surrogacy or adoption provides children, they are deprived of the mutually supportive and complementary perspectives of mother and father. Although it isn’t required of every husband and wife, marriage cannot be separated from procreation and the development of a child’s character within a stable family. The prosperity of the American republic, and civilizations before it, has depended on families for this vital instruction. It is irreplaceable.

These are not new insights. The word “matrimony” is from the Latin matrimonium ducere -- reflecting the unity of man and woman for the purpose of having children. Plato insisted that “marriage laws first [be] laid down” and that a fine be levied on those who don’t marry because “intercourse and partnership between married spouses is the original cause of childbirths.” Aristotle made marriage between husband and wife paramount because the “legislator should begin by considering how the frames of the children whom [they are] rearing may be as good as possible.” Later, Rousseau noted that “marriage has civil consequences without which it would be impossible for society itself to subsist.”

More than a century ago, the U.S. Supreme Court declared that “certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth than that which seeks to establish it on the basis of the idea of family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony.” The court has never wavered from this definition even in its modern jurisprudence. Yes, the court, in Lawrence vs. Texas (2003), did invalidate a criminal prohibition of homosexual sodomy. But that ruling in no way endorsed the practice or same-sex marriage; rather, it simply recognized privacy and the limits of the law.

Principles anchored in privacy are insufficient to determine the public and consequential legal definition of marriage. Marriage at its best is both self- and other-regarding, considerate toward family and the civic community of which it is a part. By comparison, same-sex relationships are largely self-regarding. Gay partners may derive pleasure from such relationships. But because they are not open to new life, they cannot fulfill the duties and obligations long expected of marriage.


Before the mayor of San Francisco illegally issued same-sex marriage licenses, only four judges on the Massachusetts Supreme Judicial Court had the temerity to assert that the possibility of begetting children was not at the heart of the marital estate. These activist judges not only defied millenniums of history but also ignored the words of the Supreme Court in Lawrence, that it would “demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.”

Marriage has purposes besides procreation, but many are aimed at supporting it. By channeling sexual intimacy, it reduces sexually transmitted disease. It establishes kinship networks worth far more than all the tax and probate benefits that advocates for same-sex marriage regularly demand. Fathers and mothers are not only first responders; they are also frequently the only reliable ones, whether the task be diapering the young, choosing a school, instructing in the ways of faith, encouraging adolescents past self-doubt or sustaining the elderly. No friend, neighbor or government agency, no matter how intimate, close or well funded, is similarly motivated to help. If these secondary purposes of marriage are sometimes shared by other caregivers, California’s domestic partner laws and private-employer benefits presumably were crafted with them in mind. But compensating a social relationship that relieves the community of several of its burdens is no justification for redefining marriage.

Some married men and women either don’t want children or can’t have them because of age or physical disability. Upon these exceptional circumstances, advocates of same-sex marriage would modify the general rule. Legislatures wisely don’t write laws based on the exception. And the outcome doesn’t change merely because a jurisdiction may permit same-sex adoption. Anyone caring for an orphaned child deserves praise; yet even here, responsible voices have raised concerns. For example, a federal appellate court recently sustained Florida’s prohibition of same-sex adoption, noting the state’s rational interest in “emphasiz[ing] [the] vital role that dual-gender parenting plays in shaping sexual and gender identity.” The state, reasoned the court, prefers members of a traditional marriage, or even an unmarried heterosexual, to adopt, recognizing that “in our society, we expect that parents will provide [sex] education to teenagers in the home. These subjects are often embarrassing for teenagers, and some aspects of the education are accomplished by the parents telling stories about their own adolescence and explaining their own experiences with the opposite sex.”

Because openly homosexual households are a recent phenomenon, scientific attempts to study homosexual parenting are incomplete and conflicting. We know a great deal about the risks of single parenting, however -- risks directly traceable to the absence of a mother or father. It would seem logical to expect that children with same-sex couples would face a similarly increased chance of behavioral difficulty or lesser achievement in school. It would be helpful if partisanship wouldn’t taint social science, but to date, much of the work seems more appellate brief than objective study. Some researchers have found little evidence that homosexual parenting adversely affects children; others claim that children in such households are more likely to be confused sexually, to have a homosexual experience as their first sexual encounter or face a heightened chance of being the victim of sexual abuse.


The exact cause of a person’s sexual identity is similarly unknown. It is often said to result from a combination of genetics and environment. Even some gays say they struggle to understand their inclinations. An orientation that may not be volitional should not be the basis for arbitrary or invidious distinction under law. Yet for us to pretend to have the authority to redefine marriage will not resolve the mystery. Whatever the cause of homosexuality, those who cannot maintain the necessary relationship among sexual intimacy, procreation and child rearing cannot in fact accomplish an essential object of marriage, and therefore should not be held out by law to be married. And for this reason alone, most Americans think it rational -- and just -- that law continue to be governed by fact.