Law Review: The “Accidental Procreation” Argument for Withholding Legal Recognition for Same-Sex Relationships

The “Accidental Procreation” Argument for Withholding Legal Recognition for Same-Sex Relationships
Edward Stein, 84 Chi.-Kent L. Rev. 403 (2009)

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In place of the standard argument from procreation, a new argument against such legal recognition has emerged that also involves procreation. I call this new argument the accidental procreation argument. This argument focuses on a specific difference between couples consisting of people of the same sex and those consisting of people of different sexes: namely, that the latter–but not the former–can accidentally procreate. Because of this risk of accidental procreation, proponents of this argument conclude that it is permissible for the state to provide different-sex couples with the opportunity to marry without providing the same opportunity to same-sex couples. The accidental procreation argument seems to have been first made in a dissenting opinion in 2003 and then embraced by the majority in an appellate decision in 2005. It has since been embraced by majorities in two state supreme courts and one federal appellate court as well as by other judges. This Article critically examines this newly-minted procreation-based argument for prohibiting legal recognition of same-sex relationships, arguing that it suffers from many of the same flaws as the standard argument from procreation.