The Infertility Argument for Same-Sex Marriage

The Maverick Philosopher explains:

The Infertility Argument for Same-Sex Marriage

Suppose two 70-year-olds decide to marry.  They can do so, and their marriage will be recognized as valid under the law.  And this despite the fact that such elderly couples cannot procreate.  But in many places the law does not recognize marriage between same-sex couples who also, obviously, cannot procreate.  What is the difference between the opposite-sex and same-sex cases? What is the difference that justifies a difference in legal recognition?  (Bear in mind that we are discussing legal recognition of marriage; the issue is not so-called civil unions.)  Let us assume that both types of union, the opposite-sex and the same-sex,  are guided by the following norms: monogamy, permanence, and exclusivity.  So, for the space of this discussion, we assume that the infertile heterosexual union and the homosexual union  are both monogamous, permanent, exclusive, and non-procreative. 

What then is the difference between the two cases that justifies a difference in treatment?  If the  only difference is that the one type of union is opposite-sex and the other same-sex, then that is a difference but not one that justifies a difference in treatment.  To say that the one is opposite-sex and the other same-sex is to tell us what we already know; it is not to justify differential treatment.

Here is a relevant difference.  It is biologically impossible that homosexual unions produce offspring.  It is biologically possible, and indeed biologically likely, that heterosexual unions produce offspring.  That is a very deep difference grounded in a biological fact and not in the law or in anything conventional.  This is the underlying fact that both justifies the state's interest in and regulation of marriage, and justifies the state's restriction of marriage to opposite-sex couples.

There are two points here and both need to be discussed.