The best they’ve got for DOMA?

The big news last week was the Obama administration’s historic throwing under the bus of the Defense of Marriage Act (DOMA).

The President already had made clear where his heart lies on homogamous marriage rights, and the administration already was undermining the law, which prohibits the federal government from recognizing homogamy as practiced in the states. But the brief they handed the Supreme Court last week in the DOMA case U.S. v. Windsor still broke ground in arguing that laws infringing on the rights of gays and lesbians should be scrutinized as if those groups constitute a minority to be protected — in other words, that the government needs a very good reason to discriminate against them — and that DOMA could not withstand such scrutiny.

But in my catching up on the case, what floored me was the brief by the Bipartisan Legal Advisory Group of the House of Representatives, who are left with the sorry job of defending DOMA sans assistance from Obama. We have known for a while that the intellectual bullpen is getting a little thin on the anti-homogamy side, epitomized by the tossing-out of David Blankenhorn’s claim to expert status in the anti-gay marriage California Proposition 8 case. But I didn’t realize they had slipped this far.

This is the argument that got me: the government has to support straight (heterogamous) marriage — and straight marriage only — because that is the only way to ensure that straight people’s tendency to carelessly produce children doesn’t result in lots of children living on welfare (or worse).

If homogamy becomes legal, who will care for the orphans?
If homogamy becomes legal, who will care for the orphans?

Here is an excerpt:

The link between procreation and marriage itself reflects a unique social difficulty with opposite-sex couples that is not present with same-sex couples — namely, the undeniable and distinct tendency of opposite-sex relationships to produce unplanned and unintended pregnancies. Government from time immemorial has had an interest in having such unintended and unplanned offspring raised in a stable structure that improves their chances of success in life and avoids having them become a burden on society. … Particularly in an earlier era when employment opportunities for women were at best limited, the prospect that unintended children produced by opposite-sex relationships and raised out-of-wedlock would pose a burden on society was a substantial government concern. Thus, the core purpose and defining characteristic of the institution of marriage always has been the creation of a social structure to deal with the inherently procreative nature of the male-female relationship. Specifically, the institution of marriage represents society’s and government’s attempt to encourage current and potential mothers and fathers to establish and maintain close, interdependent, and permanent relationships, for the sake of their children, as well as society at large. It is no exaggeration to say that the institution of marriage was a direct response to the unique tendency of opposite-sex relationships to produce unplanned and unintended offspring.

Although much has changed over the years, the biological fact that opposite-sex relationships have a unique tendency to produce unplanned and unintended offspring has not. While medical advances, and the amendment of adoption laws through the democratic process, have made it possible for same-sex couples to raise children, substantial advance planning is required. Only opposite-sex relationships have the tendency to produce children without such advance planning (indeed, especially without advance planning). Thus, the traditional definition of marriage remains society’s rational response to this unique tendency of opposite-sex relationships. And in light of that understanding of marriage, it is perfectly rational not to define as marriage, or extend the benefits of marriage to, other relationships that, whatever their other similarities, simply do not have the same tendency to produce unplanned and potentially unwanted children.

Is this really where we are, in legal history? Are they really still arguing that in the face of fathers abandoning their bastard children, the state’s response is to shore up marriage? Have they not noticed the millions of children born to straight parents who aren’t married, the decades-long demonization of “deadbeat dads,” the IVF, gay/lesbian couples, adoptions, and countless other family innovations in the last half century?

I’m open to suggestions for why this is anything but laughable as a legal argument against gay and lesbian marriage rights. I suppose you could use this argument against the rights of unmarried people to have children, but why, then, I wonder, did the government go to all that trouble to prevent unmarried people from acquiring birth control? Do they realize that implementing their vision also requires prosecuting adulterers and repealing no-fault divorce?

I expect anti-homogamy arguments to be hateful, or at least mean-spirited. And I recognize that this passage is just one part of a lengthy legal argument that I couldn’t stomach reading further. But this just reinforces my previous conclusion that there’s nothing left to argue over rationally.


…to my fellow college teachers: How many papers have you graded with unsourced phrases such as, “Government from time immemorial…”, and, “the institution of marriage always has been…” I wouldn’t automatically give such a paper a ‘C’ or worse, but it’s an uphill climb out of failing-grade range from that passage forward. (For real histories of marriage — which belie such ridiculous historical claims about the olden days — I recommend Marriage: A History, by Stephanie Coontz; and Public Vows: A History of Marriage and the Nation, by Nancy Cott.)

…to people who write for law reviews: I’ve been working on the edits of my forthcoming article in the Boston University Law Review, which I had the privilege of writing after presenting at their law school’s conference on The End of Men. I’m super impressed by the detailed editing the piece is getting — for example, they seem to be physically checking books out of the library to verify — and back up — my references. I can’t imagine they would have tolerated such slipshod writing as what the BLAG has produced here.

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