'The Descent of Responsible Procreation: A Genealogy of an Ideology' by Julie Nice in
Loyola of Los Angeles Law Review (forthcoming)
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This article traces the genealogy of responsible procreation, which has emerged as the primary defense of the same-sex marriage ban. To put it succinctly, the responsible-procreation
defense surmises that same-sex couples already procreate responsibly, and that the rights and responsibilities of marriage should be limited to furthering the goal of encouraging more responsible procreation by heterosexuals.
This article seeks to illuminate the responsible procreation defense by tracing how it emerged and how it has functioned and fared in constitutional challenges.
What does this genealogy of responsible procreation reveal? The roots of responsible procreation are undoubtedly religious and the defense particularly bears resemblance to a Vatican statement penned by then-Cardinal Joseph Ratzinger in 1987. The presuppositions of the responsible procreation defense are in considerable tension with current social and legal realities. Most saliently, responsible procreation has been rejected as a justification for limiting heterosexuals' constitutional rights. Its starring role was in welfare reform’s racialized and gendered rhetoric demonizing poor, single, black mothers. On welfare reform's heels, Congress hastily harnessed responsible procreation for use in the Defense of Marriage Act, racing against the much-feared first state recognition of same-sex marriage. When first subjected to trial at the state level, the responsible-procreation defense lacked credible supporting evidence.
But leading social conservative academics and advocates came to its rescue. The
newly-elaborated defense was rejected as "unpersuasive" in a sleeper test case as well as in the notorious decision invalidating the same-sex marriage ban in Massachusetts. Eventually, however, several state intermediate and high courts endorsed it. But other state high courts have rejected the defense, and some state governments and now the federal government have disavowed the defense. It also has failed to withstand the rigor of its first federal trial, succumbing to the overwhelming weight of evidence against its logic. In addition, most courts since the federal trial have rejected the defense in recent challenges to various anti-gay measures. In short, the responsible-procreation defense appears to be ideological, invidious, and on the wane.
