Several years ago the trial judge presiding over the federal constitutional challenge to California’s Proposition 8 asked Charles J. Cooper, the lead lawyer defending the voter-approved measure, how the recognition of same-sex marriages affected heterosexual couples. Apparently caught by surprise, Cooper, a former assistant attorney general under President Ronald Reagan, candidly answered that he did not know.
Cooper will undoubtedly be better prepared to answer a version of the same question when he appears before the Supreme Court this week. The brief he filed with the court explains that the recognition of same-sex marriage disconnects marriage from procreation and that heterosexuals are less likely to procreate responsibly if gay couples are permitted to marry. The brief cites studies showing that nearly half of all pregnancies in the U.S. are unintended and that children do better when raised by married parents. According to the brief, the institution of marriage was created to address the biological reality that different-sex couples can procreate. In contrast, society does not have a similar interest in allowing same-sex couples to marry because their sexual intimacy does not lead to the creation of children.
There are several reasons why the Supreme Court should reject the effort to defend same-sex marriage bans based on how and when heterosexuals have babies. First, the historical record shows that marriage rates began dropping — and that cohabitation, divorce and out-of-wedlock birth rates began rising — long before Massachusetts in 2004 became the first state to recognize same-sex marriages.
The numbers tell the story. In 1970, unmarried cohabiting couples were raising 197,000 children under the age of 15. By 2000, that figure was up to 1,675,000, an astounding 750 percent increase. Furthermore, during those 30 years, the percentage of births that took place outside of marriage increased from 11 percent to 34 percent, while the number of single-parent households grew by 250 percent. At the same time, the marriage rate dropped by 22 percent and the divorce rate increased by 17 percent.
There are many reasons for these striking changes, including shifting social norms regarding the acceptability of cohabitation, divorce and single parenting. But the important point is that the changes would not have taken place had heterosexuals not decisively embraced greater personal choice and freedom in matters related to intimate and familial relationships. The push for same-sex marriage did not fray the link between marriage and procreation; heterosexuals did that all on their own.