The Procreative Argument for Proscribing Same-Sex Marriage

24 Pages Posted: 14 Oct 2007

See all articles by Douglas W. Kmiec

Douglas W. Kmiec

Pepperdine University - Rick J. Caruso School of Law


Kmiec argues that the state interest for maintaining marriage as an institution between a man and a woman is both the encouragement of procreation and its responsible treatment by heterosexual couples. Kmiec asserts that marriage and procreation are necessarily related. He anticipates and responds to contrary arguments by demonstrating that acceptance of the procreative state interest does not depend upon excluding from marriage those who cannot physically procreate because of age or infertility and that adoption and asexual reproduction by homosexual couples do not substantially affect procreation rates. The article also suggests that public sanctioning of homosexual relationships results in an increase in same-sex couples and in cohabiting heterosexual couples. Marriage licensing procedures serve as a means of instilling an ethic of responsible procreation among heterosexual couples. Kmiec traces relevant history and jurisprudence to show societal and legal recognition of the link between marriage and procreation. Kmiec concludes by cautioning against analogizing between the civil rights movement and the advocacy of same-sex marriage.

Keywords: same-sex marriage, marriage, procreation

JEL Classification: K19

Suggested Citation

Kmiec, Douglas W., The Procreative Argument for Proscribing Same-Sex Marriage. Hastings Constitutional Law Quarterly, Vol. 32, No. 1, 2004, Available at SSRN:

Douglas W. Kmiec (Contact Author)

Pepperdine University - Rick J. Caruso School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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