Worst argument ever

Marriage should be limited to unions of a man and a woman because they alone can “produce unplanned and unintended offspring,” opponents of gay marriage have told the Supreme Court.

By contrast, when same-sex couples decide to have children, “substantial advance planning is required,” said Paul D. Clement, a lawyer for House Republicans.

In their opening briefs, this was the reasoning offered by both Clement in defense of Section 3 of the “Defense of Marriage” Act and Charles Cooper in defense of Prop 8: Because opposite sex couples are burdened with the “unique social difficulty” of frequently producing children by accident, and same sex couples “don’t present a threat of irresponsible procreation,” same sex couples and their children should be excluded from the security and benefits of marriage. This is what anti-equality American taxpayers are getting for $3 million in public funds?

It’s not even a novel argument. We christened it the “oops argument” back in 2006, when the Court of Appeals in New York suggested it as a way for the legislature to address the issue in a state which even then boasted a 53% majority in favor of equality. We interpreted it as a sly taunt on the part of the Court.

In other words, intentionality and family planning should be punished, while irresponsibility and impulsive behavior should be rewarded with government benefits?

It seems to me that this logic is faulty. If straight couples are “all too often” accidentally having children that they didn’t plan to have, isn’t the answer education and better access to birth control? After all, there are so many children in need of adoptive homes in the first place because of the impulsive behavior of straight couples. Gay people are hardly, as the Court points out, responsible for creating this situation. It is beyond irrational to deliberately handicap the gay families that step up to provide homes for some of these unplanned children.

Besides, this is not a zero-sum game. The supply of stability is not finite. Facilitating stability in same sex relationships doesn’t take stability away from different sex relationships, and nowhere does the Court suggest a mechanism by which it would.

I’m guessing that this unintentionally amusing argument is the result of realizing what is likely to happen when naked animus is revealed to be the motive for discrimination against gay and lesbian couples. It’s all that was left. And did anyone else notice the “peculiar syncrony of message and method and timing”? Uncanny.

The Clement brief in the Windsor (DOMA) case is here.
The Cooper brief in the Perry (Prop 8) case is here.

This entry was posted in Commentary, News and tagged , , , , , , . Bookmark the permalink.

3 Responses to Worst argument ever

  1. Eric says:

    I think the religious right has a point. Government should not be in the business of redefining marriage. That’s a religious rite, and government should have no say in how it is conducted.

    But Ah, you say, government has already redefined marriage. That’s true. There are no major religions that condone wedding ceremonies conducted by non-clergy, yet the Justice of the Peace can do so in most places. You would think Christians would be up in arms at the thought of a couple possibly getting married by an atheist in a courthouse. For some reason, that never seems to be an issue, even though the Bible certainly doesn’t support such an authority. It’s when government tries to redefine it further, to include gays, do the religious get upset. Still, they have a point. Government shouldn’t be doing any redefining of what belongs squarely in the scope of religion.

    The solution, of course, is to ban all mention of marriage from public law. It should all be replaced with “civil unions”. This is a win-win for everybody. No longer can the thumb of government come down on what is a religious ritual. At the same time, civil unions would be a non-religious contract that anybody can enter into. In this way, the government only gets involved in the contractual issues of any relationship, such as property rights and possibly child guardianship.

    Religions would be free to define marriage any way they wish, and gays can have their own ceremonies to their heart’s content. All would be treated equally under the law. If only religious people were really serious about not wanting government to meddle with religion.

  2. David says:

    If only religious people were really serious about not wanting government to meddle with religion.

    Exactly, Eric. Why would those who insist that the model of “one man and one woman” is “God’s design for marriage” not embrace this reboot, recognizing that it was a mistake to allow civil unions and religious marriage to become intertwined in the first place?

    The answer is that they don’t want all to be treated equally under the law, they want their own understanding of marriage to be treated as special under the law. They’re fine with government meddling with religion as long as the meddling is done to give their religious doctrine special civil privileges, at the expense of other religious and secular doctrines.

    It’s a reasonable solution in theory, but I don’t see it happening due to the lack of grassroots support. Equality for married same sex couples, everywhere, is a foregone conclusion; it’s all over but the shouting. Where things will get complicated, with what truly is a ‘redefinition of marriage’ as we know it in civil law, will be with the demand that civil marriage include more than two spouses. The objection to same sex spouses is just based on a silly and dismissible notion of inequality between men and women; 1 + 1 still = 2. More than two would require a complete overhaul of what is legally an equal relationship between two people. I just have no idea how that would work administratively. It seems to me that folks ought to be thinking about that instead of this archaic stuff about peoples’ gender.

  3. Elder Berry says:

    So there is civil marriage and religious marriage. You have to have a license from the government even for a religious marriage to be performed in this country, so all religious marriages in the US are ALSO civil marriage. Therefore in the US it is the civil marriage that is the “real” one.

    Therefore marriage is a civil right and therefore it matters as least as much in terms of equal access as sitting at a lunch counter or riding a bus. Seems to me that the Supremes would really have to turn themselves inside out and tie themselves in hypocritical and illegal knots in order to deny homosexual partners the right to marry.

    That could happen, mind you, with this court. But I bet otherwise. The arc of justice is on the side of equality.

Leave a Reply to David Cancel reply

Your email address will not be published. Required fields are marked *