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Shelby noted in his ruling that in an amicus brief submitted to the 9th Circuit Court of Appeals by the District of Columbia and 14 states that permit same-sex marriage, the states said the implementation of same-sex unions had not caused "any decrease in opposite-sex marriage rates, any increase in divorce rates, or any increase in the number of nonmarital births."
Shelby also focused on the state’s argument that same-sex couples are distinct from opposite-sex couples because they are not able to naturally reproduce. Procreation, Shelby said, is not a defining characteristic of marriage and the state’s argument demeans not just same-sex but opposite-sex couples who are unable to reproduce or choose to not have children.
The family state
Utah leads the nation in many family-related markers: It has the most households headed by married couples, the nation’s highest birthrate and the biggest families in the country. The state’s divorce rate is also among the highest in the nation, ranked No. 4 in the country.
In a court document, state attorneys describe Utah as the “most child-centric of all states and the most successful in linking children to their mothers and fathers.”
But Utah is tracking shifts observed across the nation in what is now the “norm” when it comes to marriage and childbirth. The age of first marriage in Utah has risen by about three years over the past decade and is currently 24 for women and 26 for men. Nationally, women marry at age 27 for the first time, while men on average are age 29.
In 2012, 19 percent of Utah births were to unmarried women, edging up from 17 percent a decade ago. Nationally, 41 percent of births are to unmarried women.
There were about 3,900 gay couples in Utah as of 2010, and they were raising approximately 2,900 children, according to court documents filed by the plaintiffs who challenged the state’s same-sex marriage ban. The Williams Institute, based at UCLA’s School of Law, estimated earlier this year that Salt Lake City has the highest percentage of same-sex couples raising children than any other metro area in the country.
Nationally, about 16 percent of all same-sex households included children of their own in 2011, according to the Census.
— Brooke Adams
It also disregards the fact that some gay couples do have children from previous relationships, as well as adoption and modern reproductive technology and practices, including surrogacy and artificial insemination, that have allowed gay couples to become parents.
According to Cott, states "bundled together" legal obligations and social rewards to "encourage couples to choose committed relationships of sexual intimacy over transient relationships, whether or not these relationships will result in children."
In fact, "the ability or willingness of couples to produce progeny has never been required for or necessary to marriage under the law of any American state," she said. "The notion that the main purpose of marriage is to provide an ideal or optimal context for raising children was never the prime mover in states’ structuring of the marriage institution in the United States, and it cannot be isolated as the main reason for the state’s interest in marriage today."
Cott said states’ marriage rules are aimed more at supporting than producing children.
During oral arguments before the U.S. Supreme Court on the Proposition 8 case this summer, several justices zeroed in on procreation as a basis for a same-sex marriage ban.
"Suppose a state said that because we think the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55," asked Justice Elena Kagan. "Would that be constitutional? … Because that’s the same state interest … If you are over the age of 55, you don’t help us serve the government’s interest in regulating procreation through marriage."
Scalia then quipped that perhaps states could have questionnaires at "the marriage desk when people come in to get the marriage [license], you know, are you fertile or are you not fertile?"
Attorney Charles J. Cooper, who represented the citizens group who brought the petition challenging legalization of same-sex marriage in California, then explained that marriage was designed to "make it less likely that either party to that marriage will engage in irresponsible procreative conduct outside of that marriage."
Procreation aside, Cott opined that the exclusion of same-sex couples from equal marriage rights was at odds with the historical change in marriage in the United States and contemporary public policy that "marriage is a public good."
"Throughout American history, state legislatures and courts have made and altered laws governing the meaning and structure of marriage," she said. "Restrictions on marriage that were seen as necessary in their time have since been removed as unwarranted and/or unconstitutional."
What early Americans would recognize today, she added, is that marriage is still about freely choosing a partner, forming an economic partnership and a common household and having that relationship recognized by the state.
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