Abstract

http://ssrn.com/abstract=1416770
 
 

Footnotes (109)



 


 



Marriage as a Message: Same-Sex Couples and the Rhetoric of Accidental Procreation


Kerry Abrams


University of Virginia School of Law

Peter Brooks


affiliation not provided to SSRN

June 9, 2009

Yale Journal of Law and the Humanities, Vol. 21, No. 1, 2009

Abstract:     
In his dissent in the 2003 case Goodridge v. Department of Health, Justice Robert Cordy of the Massachusetts Supreme Court introduced a novel argument in support of state bans on same-sex marriage: that marriage is an institution designed to create a safe social and legal space for accidental heterosexual reproduction, a space that is not necessary for same-sex couples who, by definition, cannot accidentally reproduce. Since 2003, every state appellate court considering a same-sex marriage case has adopted Justice Cordy's dissent until the recent California Supreme Court decision In Re Marriage Cases. In case after case, courts have held that marriage allows states to send a message to potentially irresponsible procreators that 'marriage is a (normatively) necessary part of their procreative endeavor' and that same-sex couples do not need marriage because they only procreate after considerable effort and forethought. This article examines the accidental procreation argument through the lenses of anthropological theory, history, literature, and constitutional law. We conclude that marriage has sometimes been used to channel male heterosexuality into reproduction, but to argue that this goal is the sine qua non of marriage is to vastly oversimplify its history in both law and culture. We then undertake a genealogy of the accidental procreation argument and speculate about its possible effects on the institution of marriage. We suggest that if courts continue to insist upon a definition of marriage that is so distinct from the actual practice of the institution, the law may actually be less and less influential in regulating intimate behavior.

Number of Pages in PDF File: 35

Accepted Paper Series





Download This Paper

Date posted: June 11, 2009  

Suggested Citation

Abrams, Kerry and Brooks, Peter, Marriage as a Message: Same-Sex Couples and the Rhetoric of Accidental Procreation (June 9, 2009). Yale Journal of Law and the Humanities, Vol. 21, No. 1, 2009. Available at SSRN: http://ssrn.com/abstract=1416770

Contact Information

Kerry Abrams (Contact Author)
University of Virginia School of Law ( email )
580 Massie Road
Charlottesville, VA 22903
United States
434-924-7361 (Phone)
Peter Brooks
affiliation not provided to SSRN ( email )
Feedback to SSRN


Paper statistics
Abstract Views: 1,975
Downloads: 188
Download Rank: 96,082
Footnotes:  109

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo5 in 0.312 seconds