Next week, the US Supreme Court will begin its deliberations on the contentious issue of same-sex marriage. One of the two cases it will hear concerns California’s Proposition 8, an approved state constitutional amendment that defines marriage as between a man and a woman. One of the objections to this amendment brought by lawyers Ted Olsen and David Boies for the two same-sex couples who seek to overturn it is that, “this court has never conditioned the right to marry on the ability to procreate”.

That is exactly right.

No court has ever made the ability to marry contingent on the ability to procreate. In the Perry v. Schwarzenegger case in 2010, which first found Proposition 8 unconstitutional, US District Chief Judge Vaughn R. Walker stated that the ability to produce offspring has never been a prerequisite for granting heterosexual couples marriage licenses.

But what is the relevance of this point to the case at hand and why is it at the center of the argument against exclusively heterosexual marriage?

The pro-homosexual movement uses the matter of infertility in an attempt to gain traction for same-sex marriage by pointing out that if infertile heterosexual couples can marry, then the ability to procreate cannot be a prerequisite for or essential to marriage. Therefore, they reason, homosexuals should also be allowed to marry. However, this argument works only if there is no distinction between the infertility of homosexual relations and those of an infertile heterosexual couple. In other words, all infertilities would have to be equal, ie, existing for the same reason.

Is this so?

It is not. Homosexual relations are essentially sterile, while heterosexual relations are only accidentally sterile. In fact, they are not even both infertilities properly speaking. This is a smokescreen used to deflect attention from the real underlying issue. Infertility is an issue only in respect to those whose exercise of their procreative powers in heterosexual intercourse has failed for some reason that may be due to congenital or temporary health problems.

This is the only proper use of this word. One would not, for instance, refer to baseball playing or to a rock as an infertile act or thing because it would be gratuitous. Baseball does not have the potential to be fertile, nor do rocks. Things or acts which do not possess procreative powers are not called infertile, because they could not possibly be fertile. Therefore, it makes no sense to say that a rock is infertile. Likewise, homosexual liaisons do not possess procreative potentiality. They are, therefore, not properly called infertile but, more accurately, impotent. To be accurate, Judge Walker should have contrasted heterosexual infertility with homosexual impotence.

Infertility equivalence also presumes equivalence between the kinds of acts in an infertile heterosexual union and in an impotent homosexual one. Regardless of its fertility or infertility on any specific occasion, the coital act is procreative by its nature – as only it can produce life – even when and if procreation does not result, as it does not in the vast majority of cases during a couple’s fertile lifetime. Is the nature of marital relations fundamentally different during the frequent instances when pregnancy does not occur? Are those acts, then, equivalent in kind to sodomy? At a certain point, all heterosexual couples become permanently infertile due to age, but does this make the character of their acts sodomitical? It does not. They are no less marital or generative in their nature because they always remain, in their “one-flesh” aspect, unitive – something a homosexual act can never be. Unitive coition is obviously the necessary precondition for procreation, which is why these acts remain generative in their essence.

However, sodomy, by its nature and in all circumstances, is a non-procreative act. One might even say that it is an anti-procreative act. Sodomy and coition have never been treated the same before because they are not the same. Judge Walker’s ruling and the current case against Proposition 8 rest on a denial of this. If these two acts can be equated, then treating them differently would be wrong. In the law, like must be treated alike. It is with the implicit conflation of sodomy and the marital act that Judge Walker and the current litigants try to manufacture the charge of the denial of equal protection and discrimination against Proposition 8.

This is how Judge Walker attempted to pull it off in the Perry ruling: “same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions.” Consequently, denying same-sex couples the right to marriage must be a form of discrimination and a denial of equal protection. However, they are not the same because coition and sodomy are not the same. The former allows marriage; the latter does not.

Common law holds, and has always held, that a marriage is not valid until it is consummated. What does consummating a marriage mean? It means and has always meant by law an act of vaginal intercourse between the husband and wife. If this act does not take place, the marriage can be legally declared a nullity. Until consummation, it is subject to annulment. Therefore, becoming “one flesh” is not optional for a legally valid marriage. If one is incapable of consummating a marriage or simply unwilling to do so for any reason, there can be no marriage, and therefore no “right” to it can exist. In legal terms, the spouse requesting an annulment of marriage on the grounds of impotency must prove that the impotence or physical incapacity in the partner is permanent and incurable, and was so at the time of the marriage. Any attempted union between two males or two females easily meets these criteria for annulment. (Infertility, on the other hand, is not a ground for annulment.)

Infertility and impotence are not the same; neither are coition and sodomy. So yes, dear litigants in the Proposition 8 case, the ability to marry is not contingent on fertility, but it is contingent on potency, on consummation – on becoming “one flesh”. On that requirement alone, your case for same-sex marriage fails.

Robert R. Reilly is the author of The Closing of the Muslim Mind. He is currently completing a book on the natural law argument against homosexual marriage for Ignatius Press. 

Robert R. Reilly is Director of the Westminster Institute. In his 25 years of government service, he has taught at National Defense University (2007), and served in the Office of The Secretary of Defense,...