Religion & Law

Most people suppose that there is some connection between marriage, as a human institution, and procreation.  After all, if humans did not reproduce sexually, nothing resembling the institution of marriage would likely have emerged in human cultures.  Yet many people today are puzzled about the nature of the connection.  After all, both religious and civil law recognize the validity of marriages that do not, and even cannot, produce children.  So Is the link between marriage and procreation merely incidental?  Or is it intrinsic?  Is the value of marriage instrumental to the good of having and rearing children?  Or is marriage something good-in-itself?  Obviously, the answers, whatever they are, will bear in profoundly significant ways on contemporary debates about the meaning of marriage and how it should be defined for purposes of civil law and public policy.  Patrick Lee, Gerard V. Bradley, and I have posted on Public Discourse an essay on the subject.  Part One of the essay, entitled "Marriage and Procreation:  The Intrinsic Connection" appeared on Monday and is available here:

http://www.thepublicdiscourse.com/2011/03/2638

Part Two, entitled "Marriage and Procreation:  Avoiding Bad Arguments," appeared today and is available here:

http://www.thepublicdiscourse.com/2011/03/2637

This work builds upon work I've done with Sherif Girgis and Ryan Anderson in "What Is Marriage?," published in the Harvard Journal of Law and Public Policy and available here:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1722155

Links to responses to this paper by critics (including Kenji Yoshino and Andrew Koppelman), and to our replies to those critics, have previously been posted on MoJ.  We're gratified that the paper has drawn a great deal of attention from critics and supporters alike.  It is now by a considerable margin the most frequently downloaded paper on SSRN for the past twelve months, and it is number thirteen for frequency of downloads in the history of SSRN.