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Supreme Court of the United States

Perry Trial Misconceptions and the Meaning of Procreation

October 17, 2017

“When I use a word, Humpty Dumpty said, in rather a scornful tone, it means just what I choose it to mean – neither more nor less.
The question is, said Alice, whether you can make words mean so many different things.
The question is, said Humpty Dumpty, which is to be master – that's all.”

                                                                   Alice in Wonderland

No one likes to be the stickler who points out an incorrect use of a word, at least if one wants to be invited back for dinner. Just the same, there are times a usage (or misusage) cries out for attention, and the significance may be no small matter.

The Perry case, which is attempting to overturn the voters’ definition of marriage in Prop 8, is a spectacular example of misused words and shifting meanings. The distortions begin with an assault on the very word “marriage,” which has always referred to a union of two different but complementary entities. The application to humanity was self-evident, concerning as it does, the painfully obvious complementary biological nature of men and women and potential, if not certainty, of producing children. The union of two similar (and not complementary) items may be called many wonderful things, but not “marriage” unless the word has just acquired a new (and different) meaning. It may seem a small matter, but the litigation is not about “marriage equality” - the plaintiffs’ sound bite - but rather “marriage redefinition.”

All this pales, however, in light of the casual assertion (advanced by those seeking to overturn the will of voters in Prop 8 ) that same-sex couples “procreate.” Um, no … they do not; or rather they cannot - by definition. The meaning of “procreation” is the generation (or creation) of life between two parties. When speaking of a same-sex couple, “procreation” is a misnomer because the procreative act can only occur between one of those persons and a third party of the opposite sex. This observation is not a statement about whether two people love or care about each other or about children, or about anything beyond the rather mundane definition of procreation.        

 Why is this so important in the marriage litigation? Quite simply, because case law has repeatedly held that states have an interest in linking marriage to procreation. Consequently, a relationship that (in type) can never procreate, by its very nature, will not involve the government interest in marriage. Other human relations or relationships may trigger a different government interest, but marriage is uniquely about procreation.  The state is concerned, for example, about the important relationship between a parent and child, but that relationship invokes different state concerns – hence, we would not call it marriage.  The reason for government concern in procreation is easily understood. The birth of children happens only between heterosexual couples, though at times the event is unplanned or occurs outside of marriage.   Not coincidentally, all credible evidence shows children do best when raised by their biological parents, and so the state has an interest in encouraging  the procreating couple to remain together in a stable relationship; hence, marriage.  By contrast, a same-sex couple never produces a child without planning and, very importantly, the involvement of a third party. The involvement of such a third party, who must relinquish his or her parental rights, dramatically changes the equation. Again, it is the procreative potential, and that potential alone, that has always been the essence of the state’s interest in marriage.

Let’s not mistake what is happening here. The state is not ranking relationships on a qualitative scale or intentionally demeaning people it does not like. Rather, it is tailoring the government interest to the facts the relationship presents – in short, to biological reality and not fanciful argument. There is still only one meaning to “procreation,” and no amount of linguistic legerdemain can change that. If advocates for redefining marriage wish to jettison the millennia-old foundation of procreative potential, let them say so and support their argument; but let’s not fall in the rabbit hole where words mean anything and therefore nothing, with apologies to Humpty Dumpty.