Michael Medved claims that the New Hampshire court's ruling, linked below, is a setback for gay rights and gay marriage. If homosexual sex isn't sex, legally. Eugene Volokh quotes the New Hampshire decision, "Homosexuals and heterosexuals engaging in the same acts are treated the same because our interpretation of the term 'adultery' excludes all non-coital sex acts, whether between persons of the same or opposite gender." Medved may be right. The argument for gay marriage is that there is no difference between the relationship of a heterosexual married couple and that of a homosexual couple. But the New Hampshire court points out that the point of its laws concerning marriage, and adultery as a ground for divorce, is that marriage is intended for the procreation of children, and only heterosexual intercourse, as opposed to other forms of sexual behavior, produces children. "Adultery is committed whenever there is an intercourse from which spurious issue may arise . . . ," and that, says the court, is why adultery entitles the innocent party to a divorce. The main point of marriage, then, is give legal sanction to traditional families.

This argument has lots of holes, since it is now possible to conceive children outside of the womb, and homosexual couples can "procreate" with the contribution of a womb or sperm from a third party. Still, these arrangements have more in common with adoptions than with traditional marriage, which has the distinction of producing children whose are the progeny of both marriage partners. No "gay" marriage can ever do that.