Tuesday, February 20, 2007

Marriage and Procreation

A Washington State gay-rights group calling itself the Washington Defense of Marriage Alliance has taken an innovative approach to protesting that state's refusal to recognize same-sex marriage. Late last month, the organization successfully filed a petition for a ballot initiative that, if passed, would make procreation a requirement for legal marriage. As stated in the organization's press release, the measure would:

add the phrase, “who are capable of having children with one another” to the legal definition of marriage; require that couples married in Washington file proof of procreation within three years of the date of marriage or have their marriage automatically annulled; require that couples married out of state file proof of procreation within three years of the date of marriage or have their marriage classed as “unrecognized;” establish a process for filing proof of procreation; and make it a criminal act for people in an unrecognized marriage to receive marriage benefits.

The organization also has in the works two more ballot initiatives. One would prohibit married couples with children from divorcing or separating. The other would automatically confer married status on a couple that has a child. As the WDMA freely acknowledges, these are all idiotic proposals. Their point is to dramatize the hypocrisy of the argument---accepted by the Washington Supreme Court last July in Andersen v. King County ---that marriage can be restricted to straight couples because of the state's interest in child rearing. The WDMA states: "By getting the initiatives passed, we hope the Supreme Court will strike them down as unconstitutional and thus weaken Andersen itself."

That's a nice idea, but there's no chance that the voters of Washington will actually pass the initiative. It's best seen as a means of focusing attention on the flaws in the argument accepted by the Andersen court.

However, the initiative does raise an intriguing possibility for inter-state manipulation of Supreme Court precedent. Experienced impact litigators know that timing often matters for a successful litigation strategy. If you want the Court to strike down abortion restrictions, it helps first to establish a precedent invalidating contraception prohibitions. Likewise, if the Court rejects the "protect the children" rationale for restricting marriage to procreative straight couples, it will have a harder time accepting that rationale as a basis for sustaining same-sex marriage bans. So suppose that the population in some state strongly opposed some law of type X, so much so that it is not enough for voters in that state simply not to have X-type laws, but that they pass a law of type Y, which is the reductio ad absurdum of X. Then, when someone successfully challenges Y, the precedent makes it that much easier to go after X. Care would have to be taken to avoid having the lawsuit against Y be deemed collusive, but we can imagine circumstances in which the strategy would work. For now, though, same-sex marriage bans are almost certainly not among them.