But procreation is a big part of the reason there is a legal institution of marriage to begin with. You're right that it's also a contract between two committed individuals, but that doesn't speak to the unique union of marriage. Without procreation you just have two people wanting to call themselves married to attain a type of social distinction while not fulfilling one of its most fundamental purposes.
Lets assume we have a man and woman who wish to marry, however the woman is infertile. According to the reasoning of some, because this union could not produce children, it should not be allowed.
That's not their reasoning. Of course there are couples who cannot or will not have children. I'm not saying every couple can or even should have children. I'm saying the one of the overarching reasons for legal marriage is due to the fact that men and women have children. That's a fundamental by-product of romantic unions between two people of the opposite sex.
Same-sex couples do not produce children, which isn't to say gays and lesbians can't have their own kids or even bring kids into a familial fold. But whereas it's intrinsic to heterosexual unions, it fundamentally is not to same-sex couples, which to many people creates a clear difference that doesn't require we treat those couples as though they're the same.
And there are fertile opposite-sex couples who elect not to have children; no state would perceive either union as lesser than a union with offspring.
Consequently, the contract of marriage can not be conditioned upon the ability to, or desire to, have children.
As the Court noted in
Lawrence, citing
Bowers:
ndividual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of liberty protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons. 478 U.S., at 216 (footnotes and citations omitted).
LAWRENCE V. TEXAS
Since the decision to have children or not or any other aspect of an intimate relationship, in the context of marriage or not is protected by the fundamental right of privacy, the state may not forbid any couple from marrying because that union wont produce children.
With this requirement not in play, therefore, the state has no authority to disallow same-sex couples from marrying.
The state couldn't deny one heterosexual couple a marriage license over another simply because one has children and the other doesn't, true. But we're talking about the definition of marriage and why it exists and why it doesn't tend to include same-sex couples. It does become a matter of privacy when we're talking about a type of couple that potentially could procreate and the discretion they use to determine whether or not to parent. It's less about privacy when talking about legalizing other forms of marriage that would not procreate regardless if it was a requirement or not.
And you keep using the word "requirement"...I didn't say anyone was required to have children. I don't think anyone really has said it was a requirement of marriage that people have children. The point is, many of the benefits tied to marriage exist given the fact that men and women tend to have children. They don't exist just as a gift of sorts for being in a romantically fulfilling relationship.
