Recent Developments: Decoupling Marriage & Procreation: A Feminist Argument for Same-Sex Marriage

The quickly arriving reality of same-sex marriage is a move forward for all couples who marry, including opposite-sex and transgender couples. This piece examines the way that same-sex marriage will improve these other marriages. In particular, I argue that the “essential aspects” of marriage remain sex and reproduction—domains associated with the wife in a traditional marriage in a way that serves to denigrate women. Although the long-existing link between procreation and marriage has begun to fade, it will not be until same-sex marriage is fully legalized that opposite-sex marriage can fundamentally change. Therefore, both feminists and advocates of same-sex marriage should work together to continue to make marriage relevant for the modern day. INTRODUCTION 308 I. IMPLICATIONS OF THE MARRIAGE-PROCREATION COUPLING 309 II. THE SLOWLY SHIFTING VIEWS OF PROCREATION AND MARRIAGE IN FAMILY LAW 313 A. Annulment 314 B. Assisted Reproductive Technology 318 C. Adoption 323 D. Same-Sex Marriage 327 1. Starting with Sex: Lawrence as a Foundation 328 2. California’s Same-Sex Marriage Cases 329 3. Same-Sex Marriage Litigation from Other Jurisdictions 333 III. HOW SAME-SEX MARRIAGE CAN RE-DEFINE ALL MARRIAGE 334 A. Application of Annulment Law to Same-Sex Marriages 335 B. Same-Sex Marriage Litigation and the Separation of Procreation from Marriage 337 CONCLUSION 337 † The author received a BA from University of Kentucky in 2009 and a JD from the University of California, Berkeley, School of Law in 2012. She would like to thank Erin Everett for her excellent editorial assistance on this piece. RECENT DEVELOPMENTS ALSGAARD (DO NOT DELETE) 6/22/2012 3:50 PM 308 BERKELEY JOURNAL OF GENDER, LAW & JUSTICE