Edward Stein


For many years, a common argument made by opponents of same-sex marriage was that marriage crucially involves procreation and, because couples consisting of two people of the same sex simply cannot procreate, therefore, same-sex couples should not be able to marry. While this argument is now widely seen as weak, in its place, a new argument that also involves procreation has emerged that focuses on the claim that different-sex—but not same-sex-couples, can accidentally procreate. Because of this risk of accidental procreation and the associated risk of harm to children who result from accidental procreation, proponents of this argument conclude that it is permissible for the state to provide different-sex couples with the opportunity to marry without providing the same opportunity to same-sex couples. Several courts have embraced this argument against same-sex marriage. This paper shows that the accidental procreation argument against same-sex marriage has the same infirmities as prior arguments against same-sex marriage that concern procreation. Both arguments have problems with under- and over-inclusiveness and both embrace an overly narrow account of the role of marriage. The accidental procreation argument should, like previous arguments from procreation, eventually wither under both empirical and logical analysis, and subsequently, be rejected by states as plausible justifications for prohibiting same-sex marriages and rejected by courts as not satisfying rational review.

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