The Volokh Conspiracy
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Would A Subsidy To Encourage Young Men and Women To Marry Be Constitutional?
The government would offer a graduated subsidy, based on the age of the mother, to marry under the age of 30, with the goal of promoting natural child conception.
One of Charlie Kirk's primary platforms was to encourage young men and women to get married early and have babies. The New York Times recounted one of his final messages:
At a young women's leadership conference this summer, Mr. Kirk warned women about waiting too long to get married. He argued that their chances of finding a life partner dropped if they were still single by the time they turned 30 — a message he reiterated on Fox News just days before his death.
"I would also tell young ladies: You can always go back to your career later," he said early last week, adding "that there is a window where you primarily should pursue marriage and having children. And that is a beautiful thing."
This proposal ginned up an idea. What if the government tried to subsidize men and women to get married young, with the goal of promoting natural child conception? The subsidy would not be available to older opposite-sex couples. The subsidy would also not be available to same-sex couples, regardless of their age, who could not naturally conceive a child within that marriage. Call it the Charlie Kirk Family Bonus.
If a woman under the age of 21 gets married to a man, there is a subsidy of $100; at the age of 22, a subsidy of $90; at the age of 23, $80; and so on. Once the wife reaches the age of 30, the subsidy drops to $0. The exact dollar amounts can be adjusted. The important point is that state is using subsidies to expressing its preference for natural child conception within a marriage.
Would such a regime be constitutional? Let's walk through the analysis.
First, this law would impose an age-based classification, which is generally reviewed with rational basis scrutiny (see Skrmetti). The fact that women over the age of thirty are ineligible for the subsidy would pass muster. The state can rationally conclude that older women are less likely to be able to conceive naturally. The law would easily satisfy this deferential standard. But that is not the end of the analysis.
Second, does this law impose a classification on the basis of sex? (I'll get to sexual orientation later.) Well in a sense, no. Married couples with one man and one woman are eligible. This law does not treat men different from women. Indeed, the couple would jointly receive the subsidy. It's true that people who do not get married would never receive the benefit. But there are many benefits--tax and otherwise--that are afforded to married couples. I think a law that favors married couples over unmarried people would be reviewed with rational basis scrutiny.
Still, for the sake of argument, I will presume this law imposes a sex classification. This sort of law is reviewed with intermediate scrutiny standard. Under VMI, would the state have an "exceedingly persuasive" justification to offer these graduated subsidies? I think it is fairly well established that as a woman gets older, her ability to reproduce decreases. Don't take my word for it. The American College of Obstetricians and Gynecologists explains "A woman's peak reproductive years are between the late teens and late 20s. By age 30, fertility (the ability to get pregnant) starts to decline." (Men, by contrast, have higher fertility rates at older ages.)
A likely response is that women above the age of thirty can be aided in conception through various forms of IVF or fertility treatment. But here, the state is encouraging natural child conception, not the more expensive and less effective artificial means. The state may also conclude that IVF creates a false sense of security, whereby women can postpone conception till much later, only to find the process is difficult or unsuccessful. I think the state could also reject IVF from a moral perspective, in that it necessarily entails the destruction of many fertilized embryos. Certainly under Dobbs, the state can make that judgment. Couples can also adopt, but the state may determine that the primary interest is in promoting new lives.
Is this law promoting an important interest? The state could cite the crisis of underpopulation, and argue that it needs to promote conception to sustain the social fabric and economy of the polity.
What about the substantial relationship? Here, there is a very close relationship between the means (young couples marrying) and the ends (natural conception). Not all young couples will be able to have children, for a host of reasons. But encouraging opposite-sex marriage is the traditional means of encouraging responsible procreation. I think this graduated subsidy regime would pass muster under intermediate scrutiny.
Third, does this law impose a classification on the basis of sexual orientation? On its face, the answer is no. The law doesn't purport to define what marriage is or say anything at all about homosexuality. Rather, the law applies to a man and a woman who chose to get married by a certain age. Nothing stops a gay man from marrying a woman, and nothing stops a lesbian from marrying a man. This sort of arrangement happened throughout much of history. But I'll resume for the sake of argument that this law imposes a classification on the basis of sexual orientation. Would such a classification be reviewed under a rational basis or an intermediate scrutiny standard? Neither Obergefell nor Lawrence settled this issue. And I'm not sure it matters. I think this law survives scrutiny under the VMI test as described above.
Fourth, what about the substantive due process analysis from Obergefell? This law would not violate the square holding from Obergefell. Same-sex couples would still receive marriage licenses. But Obergefell seems to have gone further:
There is no difference between same- and opposite-sex couples with respect to this principle. Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage.
Pavan v. Smith (2017) ruled that the state must issue a birth certificate with the name of the mother's wife, just as the state would list the name of the mother's husband. People forget that Pavan was decided on (gasp!) the shadow docket through a summary reversal. Justice Gorsuch, Thomas, and Alito dissented here. I suspect this case might come out differently today.
Would the baby bonus be within the "constellation of benefits" of marriage? Yes and no. Only some married couples can receive it. The subsidy is only available to opposite-sex couples, but more precisely, the subsidy is only available to young opposite-sex couples. And the state has a fairly weighty interest to limit the availability of the subsidy. Women in opposite-sex marriages above the age of thirty are categorically ineligible for the subsidy. In this regard, gay couples are not singled out for disfavored treatment. By contrast, in Pavan, listing a name on a birth certificate has no consequences, beyond the recognition of a same-sex marriage. And in Windsor, all gay couples were denied the tax benefits. Windsor rejected "moral disapproval" as a justification for DOMA, but that decision did not address the state's interest in promoting natural child conception.
Wouldn't the baby bonus "demean" or deny the "dignity" of same-sex couples who are not eligible? Again, the law also does not apply to women over the age of thirty, writ large. This law is not premised on "moral disapproval" of gay couples, but instead, is designed as a way to promote natural conception within marriage.
Chief Justice Roberts stated the issue plainly in his Obergefell dissent:
The premises supporting this concept of marriage are so fundamental that they rarely require articulation. The human race must procreate to survive. Procreation occurs through sexual relations between a man and a woman. When sexual relations result in the conception of a child, that child's prospects are generally better if the mother and father stay together rather than going their separate ways. Therefore, for the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond.
Wait a minute, you might ask. Didn't the Obergefell majority reject the "procreation" justification for traditional marriage laws?
People often ask me whether Obergefell would be overruled. I think the answer is no, for the stare decisis reasons that Justice Alito identified in Dobbs. But I am skeptical the Court would extend Obergefell to new contexts. This sort of conception-subsidy would be such a new context.
This post is mostly a thought experiment. I'm curious to see what others think.
