Tuesday morning, during the Supreme Court’s oral arguments in Obergefell v. Hodges, Justice Ruth Bader Ginsburg raised a good question. What should states do, she asked, when a 70-year-old straight couple asks for a marriage license? “You don’t have to ask them any questions,” she pointed out, to “know they’re not going to have any children.” If marriage is for procreation—and gay couples are excluded for that reason—why aren’t old couples excluded, too?
The man to whom Ginsburg posed the question, an attorney representing states that forbid gay marriage, had no good answer. And his inability to explain the discrepancy cuts to the heart of the issue, because the states whose laws have been challenged in Obergefell—Ohio, Kentucky, Michigan, and Tennessee—have staked their case on reproductive biology.
Last fall, in its ruling on Obergefell, the 6th Circuit Court of Appeals bought the biology argument. Marriage, the court reasoned, is “an incentive for two people who procreate together to stay together for purposes of rearing offspring.” In excluding same-sex couples from this institution, the court concluded, states had simply accepted “the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes. … That explanation, still relevant today, suffices to allow the States to retain authority over an issue they have regulated from the beginning.”
Organizations that oppose homosexual behavior have echoed this argument in briefs to the Supreme Court. “As a matter of simple biology, only sexual relationships between men and women can lead to the birth of children by natural means,” says the United States Conference of Catholic Bishops.
Many of my friends reject this argument as irrational. I disagree. The distinction is solid. It really does exclude all same-sex couples. But to apply it honestly, you’d also have to exclude millions of opposite-sex couples. As the Human Rights Campaign explains in its brief to the court:
[T]here are at least three different kinds of couples who might qualify for marriage: (1) fertile straight couples, (2) infertile straight couples, and (3) infertile gay couples. Assuming arguendo that the state’s only interest in marriage is to channel “responsible procreation” (which is clearly not the case in any event), it might make sense to draw a line between the first and second groups. But once the second group is allowed to marry, what sense does it make to draw the line between the second and third groups, who are identically situated for these purposes? After all, it is not as if the second group can “responsibly procreate” any better than the third group.
This is a serious problem for opponents of gay marriage. They’ve tried to answer it by pleading that infertile straight couples are hard to identify. To find out which couples are infertile, they argue, you’d have to invade everyone’s privacy. The bishops’ brief, quoting a lower-court opinion, says states would have to “give sterility tests to all applicants, refusing licenses to those found sterile or unwilling to raise a family. Such tests and inquiries would themselves raise serious constitutional questions.” The Family Research Council offers the same excuse: “Such an inquiry would be constitutionally barred and impossible to administer.”
That’s a decent answer. But it doesn’t apply to the biggest category of infertile people: old folks. A separate brief, filed by a collection of organizations representing senior citizens, lays out the math. According to census data, 18 percent of men and 15 percent of women who got married in this country in 2009—more than 700,000 people—were at least 45 years old. More than 250,000 were at least 55 years old. More than 80,000 were at least 65 years old. From 2009 to 2013, the 45-and-over segment of the just-married population increased to 20 percent of men and 16 percent of women. That’s more than 750,000 people, including “couples in their eighties and nineties.”
Based on these figures, the brief computes that from a procreative standpoint, banning gay marriage, but not elderly marriage, isn’t just illogical. On balance, it’s counterproductive:
Approximately 15 percent of the marriages entered into each year involve an older couple that is almost certainly incapable of procreation. By contrast, if all legal restrictions are removed, same-sex couples are likely to account for two to four percent of all marriages. A classification that allows a substantial number of older couples to marry despite being incapable of procreation, while preventing a small minority of older couples from marrying because they are incapable of procreation, clearly does not bear a rational relationship to the goal of restricting marriage to couples capable of procreation.
That’s a powerful indictment. And the brief goes further. It notes that “a number of states allow otherwise unlawful marriages only if the celebrants are too old (or otherwise unable) to procreate.” Arizona allows first cousins to marry one another only “if both are at least 65 or older, or one is over 65 and the judge receives ‘proof ... that one of the cousins is unable to reproduce.’ ” Illinois requires first cousins to be at least 50 years old or to prove that one of them is “irreversibly sterile.” Wisconsin requires the female cousin to be 55 or older. Indiana and Utah have similar statutes.
Why do states allow cousins to marry at age 50 or 55? Because that’s when a woman no longer has a serious chance at conception. The average age of menopause is 51, and women generally stop bearing children 10 years before that. By age 45, 87 percent of women are infertile. The median age at onset of sterility is 44.7 years, with a disappearing fertility curve and a presumption of permanent sterility at 50. Beyond that, the outliers are in the single digits. The oldest age at which a woman is known to have conceived a successful pregnancy without hormone treatment or donor eggs is 58.
At age 60 or above, there’s no record of any woman conceiving a successful pregnancy naturally. A few have used donor eggs. But once you cross that line, you’re doing the same thing lesbian couples can do: using somebody else’s gametes. Opponents of gay marriage don’t accept that kind of procreation as a basis for marriage. As the bishops put it: “Only sexual relationships between men and women can lead to the birth of children by natural means.”
So age 60 clearly demarcates the point beyond which sexual relationships aren’t procreative. The state doesn’t have to ask you any questions or administer any tests. It already knows your age, because you wrote it down when you applied for the marriage license. Read the Ohio law at issue in Obergefell. Right below the section that forbids same-sex marriage, there’s a section requiring the parties to state their age under oath.
If Ohio and other states want to limit marriage based on procreation, they’ll have to treat age the same way they treat sex. And Ginsburg’s hypothetical cutoff—age 70—is way too lax. Any marriage application on which a woman reports her age as 60 or older would have to be rejected. The 6th Circuit’s ruling in Obergefell implies that the line should be drawn even earlier, at 50. The judges noted that a prior Supreme Court case
holds that a State may require law enforcement officers to retire without exception at age fifty, in order to assure the physical fitness of its police force. If a rough correlation between age and strength suffices to uphold exception-free retirement ages (even though some fifty-year-olds swim/bike/run triathlons), why doesn’t a correlation between male-female intercourse and procreation suffice to uphold traditional marriage laws (even though some straight couples don’t have kids and many gay couples do)?
Fine. We’ll accept the correlation between male-female intercourse and procreation, if you’ll accept the correlation between age 50 and procreation. Amend your laws to prohibit the marriage of any woman beyond that point. Or extend marriage rights to all infertile couples, whether gay or old.