Tenth Circuit Court of Appeals on the "Procreation" Argument Against Same-Sex Marriage

One of the primary legal arguments from those who oppose same-sex marriage is that "procreation" is fundamental to marriage, and since same-sex couples are biologically unable to "naturally" produce offspring from the resultant sexual activity between those two married partners, therefore same-sex "marriage" is not "marriage" at all, and the state has no interest in legally recognizing it. In fact, the Indiana Attorney General, Greg Zoeller, was the lead author in an amicus brief representing several U.S. states, with procreation being a primary legal rationale opposing same-sex marriage in a 10th Circuit Court of Appeals case about the Utah ban on same-sex marriage. However, the court ruled against Zoeller's argument, stating that procreation is not a legal fundamental of marriage (coincidentally, the same day that an Indiana Federal judge ruled unconstitutional, Indiana's ban on same-sex marriage). Below are the fully quoted, relevant portions of the court's opinion in the Kitchen vs. Herbert case that discuss procreation and state's interest in recognizing marriage.

Appellants’ assertion that the right to marry is fundamental because it is linked to procreation is further undermined by the fact that individuals have a fundamental right to choose against reproduction. “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (emphasis omitted); see also Griswold, 381 U.S. at 485-86 (recognizing right of married individuals to use contraception). (p. 33)

The challenged restrictions on the right to marry and on recognition of otherwise valid marriages, however, do not differentiate between procreative and non-procreative couples. Instead, Utah citizens may choose a spouse of the opposite sex regardless of the pairing’s procreative capacity. The elderly, those medically unable to conceive, and those who exercise their fundamental right not to have biological children are free to marry and have their out-of-state marriages recognized in Utah, apparently without breaking the “conceptual link between marriage and procreation.” The only explicit reference to reproduction in Utah’s marriage law is a provision that allows first cousins to marry if “both parties are 65 years of age or older; or . . . if both parties are 55 years of age or older, upon a finding by the district court . . . that either party is unable to reproduce.” Utah Code § 30-1-1(2). This statute thus extends marriage rights to certain couples based on a showing of inability to reproduce. (p. 44)

Several recent district court decisions have rejected nearly identical state attempts to justify same-sex marriage bans based on procreative concerns. See Geiger, 2014 U.S. Dist. LEXIS 68171, at *43 (“Procreative potential is not a marriage prerequisite.”); Latta, 2014 U.S. Dist. LEXIS 66417, at *68 (“Idaho does not condition marriage licenses or marital benefits on heterosexual couples’ ability or desire to have children. No heterosexual couple would be denied the right to marry for failure to demonstrate the intent to procreate.”); DeBoer, 2014 U.S. Dist. LEXIS 37274, at *37 (“The prerequisites for obtaining a marriage license under Michigan law do not include the ability to have children . . . .”); De Leon, 2014 U.S. Dist. LEXIS 26236, at *44 (“This procreation rationale threatens the legitimacy of marriages involving post-menopausal women, infertile individuals, and individuals who choose to refrain from procreating.”); Bostic, 970 F. Supp. 2d. at 478-79 (“The ‘for-the-children’ rationale also fails because it would threaten the legitimacy of marriages involving post-menopausal women, infertile individuals, and individuals who choose to refrain from procreating.”). (p. 46)

Dist. LEXIS 68171, at *43 (“[A]ny governmental interest in responsible procreation is not advanced by denying marriage to gay a[nd] lesbian couples. There is no logical nexus between the interest and the exclusion.”); DeBoer, 2014 U.S. Dist. LEXIS 37274, at *40 (“Nor does prohibiting same-sex marriage increase the number of heterosexual marriages or the number of children raised by heterosexual parents.”); De Leon, 2014 U.S. Dist. LEXIS 26236, at *42-43 (“Defendants have failed to establish how recognizing a same-sex marriage can influence, if at all, whether heterosexual couples will marry, or how other individuals will raise their families.”); Bostic, 970 F. Supp. 2d at 478 (“[R]ecognizing a gay individual’s fundamental right to marry can in no way influence whether other individuals will marry, or how other individuals will raise families.”); Bishop, 962 F. Supp. 2d at 1291 (“Marriage is incentivized for naturally procreative couples to precisely the same extent regardless of whether same-sex couples (or other non-procreative couples) are included.”). Dist. LEXIS 68171, at *43 (“[A]ny governmental interest in responsible procreation is not advanced by denying marriage to gay a[nd] lesbian couples. There is no logical nexus between the interest and the exclusion.”); DeBoer, 2014 U.S. Dist. LEXIS 37274, at *40 (“Nor does prohibiting same-sex marriage increase the number of heterosexual marriages or the number of children raised by heterosexual parents.”); De Leon, 2014 U.S. Dist. LEXIS 26236, at *42-43 (“Defendants have failed to establish how recognizing a same-sex marriage can influence, if at all, whether heterosexual couples will marry, or how other individuals will raise their families.”); Bostic, 970 F. Supp. 2d at 478 (“[R]ecognizing a gay individual’s fundamental right to marry can in no way influence whether other individuals will marry, or how other individuals will raise families.”); Bishop, 962 F. Supp. 2d at 1291 (“Marriage is incentivized for naturally procreative couples to precisely the same extent regardless of whether same-sex couples (or other non-procreative couples) are included.”). (p. 51-52)

(Kelly Concurrence) Much of this court’s opinion is dedicated to finding otherwise by separating 9marriage from procreation and expounding on how other substantive due process and privacy concepts, including personal autonomy, dignity, family relationships, reproductive rights, and the like, are the antecedents and complements of same-gender marriage. But we should be reluctant to announce a fundamental right by implication. Not only is that beyond our power, it is completely arbitrary and impractical; as in this case, a state should be allowed to adopt change if desired and implement it. As these proceedings demonstrate, the State has a much better handle on what statutory and administrative provisions are involved, and what is necessary to implement change, than we do. (p. 9-10)