These include (1) safe sexual relations; (2) responsible procreation; (3) optimal child rearing; (4) healthy human development; (5) protecting those who undertake the most vulnerable family roles for the benefit of society, especially wives and mothers; (6) securing the stability and integrity of the basic unit of society; (7) fostering civic virtue, democracy, and social order; and (8) facilitating interjurisdictional compatibility.
SOCIETY HAS PROFOUND INTERESTS IN RESPONSIBLE PROCREATION
The first three public purposes of marriage -- the social interests in safe sex, responsible procreation, and optimal child rearing -- are closely linked in our laws and social policies, just as they are closely linked in life.
In this Essay, there is room only to consider one of these interests: procreation. The balance of this Essay presents some of the evidence and analysis showing the importance of the contributions of traditional male-female marriage to the social interests in procreation, to suggest why it is very unlikely that advocates of legalizing same-sex marriage can show that same-sex unions make comparable contributions to achieving social interests in procreation.
Society has a compelling interest in preserving the institution that best advances the social interests in responsible procreation, and that institution is traditional male-female marriage.(23) The elements of this social interest (each a social interest in itself) can be quickly identified and summarized.
The first social interest in responsible procreation is the perpetuation of human society: survival through reproduction.
The interest in procreation also extends to concern for the public health and particularly for the welfare of coming generations.
Society also has an interest in linking procreation to child rearing.
Social order is a fourth social interest in responsible procreation. Human procreation generally involves the powerful passions of sexual and biological relationships.(31) Uncertainty about or interference with a relationship involving a heterosexual partner or offspring have historically generated much conflict and violence.(32) Plato referred to the social need for "sacred marriages" as a bulwark against the evil of promiscuity.(33) In the absence of clear, unambiguous social rules concerning procreation, there will be irresponsibility, conflict, moral confusion, and violence.
TRADITIONAL MALE-FEMALE MARRIAGE BEST PROTECTS AND SIGNIFICANTLY FURTHERS THE STATE'S INTERESTS IN RESPONSIBLE PROCREATION
Traditional male-female marriage is the institution that has functioned most consistently to facilitate, support and protect responsible human procreation. Deep historic and cultural linkage connects marriage with procreation.
Our courts have long recognized that the state's interest in responsible procreation is closely linked to marriage and merits special constitutional recognition.