The Descent of the Responsible Procreation Defense: A Genealogy of an Ideology

Julie A. Nice, University of San Francisco School of Law

Abstract

This article traces the genealogy of responsible procreation, which has emerged as the primary defense of the same-sex marriage ban. To put it succinctly, the responsible procreation defense surmises that same-sex couples already procreate responsibly, and that the rights and responsibilities of marriage should be limited to furthering the goal of encouraging more responsible procreation by heterosexuals. This article seeks to illuminate the responsible procreation defense by tracing how it emerged and how it has functioned and fared in constitutional challenges.

What does this genealogy of responsible procreation reveal? The roots of responsible procreation are undoubtedly religious, and its presuppositions are in considerable tension with current social and legal realities. Most saliently, responsible procreation has been rejected as a justification for limiting the constitutional rights of heterosexuals. Its starring role was in welfare reform’s racialized and gendered rhetoric demonizing poor, single, black mothers. On the heels of welfare reform, Congress hastily harnessed responsible procreation for use in the Defense of Marriage Act, racing against the much-feared first state recognition of same-sex marriage. When first subjected to trial at the state level, evidence in support of responsible procreation was missing in action. But leading social conservative academics and advocates came to its rescue. Responsible procreation was rejected nonetheless as “unpersuasive” in a sleeper test case (which later was misconstrued as having accepted the defense). Eventually several state intermediate and high courts endorsed it. But now the federal government and some state governments have disavowed the defense. It has failed to withstand the rigor of its first federal trial, succumbing to the overwhelming weight of evidence against its logic. Following the federal trial, most of the arguments posited about the responsible procreation defense on appeal closely track the same types of arguments made in the briefs in Loving v. Virginia. And most courts since the federal trial have rejected it in recent challenges to various anti-gay measures. In short, the responsible procreation defense appears to be ideological, invidious, and on the wane.