Marriage, Biology, and Federal Benefits

50 Pages Posted: 27 Nov 2012 Last revised: 8 Jan 2015

Courtney G. Joslin

University of California, Davis - School of Law

Date Written: March 26, 2013

Abstract

This Article approaches the topic of same-sex marriage from a novel perspective by scrutinizing the historical accuracy of primary defense proffered by same-sex marriage opponents – “responsible procreation.” In the context of challenges to Section 3 of DOMA, responsible procreation posits that the federal government’s historic purpose in extending marital benefits is to single out and specially support families with biologically-related children. Because same-sex couples cannot fulfill this long-standing purpose, it is permissible to deny them all federal marital rights and obligations. While advocates disagree about whether and to what extent DOMA furthers this alleged federal interest, to date, all sides have accepted this historical account.

This Article is the first to interrogate the accuracy of this account. To do so, the Article examines two of the largest and most important federal benefits programs – Social Security benefits and benefits for active and retired members of the U.S. military. This analysis demonstrates that Congress has not and does not condition the receipt of federal family-based benefits on biological parent-child relationships. To the contrary, Congress long has implicitly and explicitly extended such benefits to families with children known to be biologically unrelated to one or both of their parents. This Article thus reveals that responsible procreation is based on myth, not history and tradition.

Keywords: same-sex marriage, marriage, biology, DOMA, benefits, parentage, procreation, responsible, military, rational basis review

Suggested Citation

Joslin, Courtney G., Marriage, Biology, and Federal Benefits (March 26, 2013). 98 Iowa Law Review 1467 (2013); UC Davis Legal Studies Research Paper No. 315. Available at SSRN: https://ssrn.com/abstract=2181517

Courtney G. Joslin (Contact Author)

University of California, Davis - School of Law ( email )

400 Mrak Hall Drive
Davis, CA CA 95616
United States
(530) 752-8325 (Phone)

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