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BLAG’s Terrible Argument Against Marriage Equality

The Bipartisan Legal Advisory Group, the attorneys hired by the House of Representatives to defend the Defense of Marriage Act after the Obama DOJ decided not to, is offering up some unusual arguments to defend the law. In a brief (PDF) filed with the Supreme Court, they argue:

Congress recognized the basic biological fact that only a man and a woman can beget a child together without advance planning, which means that opposite-sex couples have a unique tendency to produce unplanned and unintended offspring. Congress sought to encourage the raising of such children by both their biological parents in a stable family structure.

Okay. So why didn’t Congress prohibit women from having children with donated sperm and close down all the sperm banks? After all, such arrangements guarantee that the resulting child will not be raised by the biological parents. And surrogate parenting as well. And adoption, for that matter. All of those things directly cause the very problem they claim to want to prevent yet all of them are legal, while BLAG argues that it’s entirely reasonable for Congress to refuse to recognize same-sex marriages that are entirely legal in the states that they are performed in — and not on the grounds that same-sex marriage will actually cause children not to be raise by their biological parents but because Congress thinks heterosexual marriages are a good thing (duh).

They return to this language again and again:

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.

So why does this not apply to planned and intended children? Why the focus on unplanned and unintended children? Do planned and intended children not benefit from their parents maintaining close, interdependent and permanent relationships? Do the children of gay parents — and there are hundreds of thousands of them — magically not need the protection that marriage provides?

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.

Seriously, they think this is a good argument? It would seem to me that those who go through the very difficult and cumbersome process of having kids through in vitro fertilization or adoption are probably likely to be more committed and devoted parents than those who have kids, to quote Jamie Kilstein, “because the condom broke.” Planned and intended children are probably considerably better off than unplanned children because their parents could make sure they were prepared to be parents before taking the plunge.

So why this obsession with unplanned children? Because it’s a pretext, a way of drawing an irrelevant distinction between straight marriages and gay marriages and then pretending that it’s relevant.

Comments

  1. says

    The Washington State Supreme Court bought a similar argument in 2006, when it ruled that:

    1. The purpose of marriage was procreation.

    2. The state has a legitimate interest in preserving marriage for that purpose.

    3. Same-sex couples are incapable of procreating.

    4. Therefore, the Legislature has a constitutional right to prevent same-sex couples from getting married in this state.

    Initiative 957 was the response by some friends of mine. Basically, it was a serious effort at reductio ad absurdam and would have put that “reasoning” into state law. (The idea was to get it passed, then force the State Supreme Court to overturn it and the ruling it was directly based on.) The initiative got international attention and was mentioned in several briefs filed with the California and Iowa Supreme Courts in the cases where they overturned state marriage bans. The procreation argument disappeared soon after that; it is sad to see it resurfacing again, like a turd in a punch bowl.

  2. says

    I guess I’ll have to tell my wife that we need to file for an annulment since we chose to be child free if the Supreme Court rules that the only purpose of marriage is to take care of broken condom babies.

    BRW, just how “bipartisan” is BLAG?

  3. Crip Dyke, MQ, Right Reverend Feminist FuckToy of Death & Her Handmaiden says

    Yes, I agree with you that it’s a pretext, but…

    Seriously, they think this is a good argument? It would seem to me that those who go through the very difficult and cumbersome process of having kids through in vitro fertilization or adoption are probably likely to be more committed and devoted parents than those who have kids, to quote Jamie Kilstein, “because the condom broke.” Planned and intended children are probably considerably better off than unplanned children

    is exactly their argument.

    Far from the 90s when they were arguing that queer parents are inherently worse, in light of research disproving this by the vast preponderance of the evidence, they are now arguing that **obviously** people who plan carefully for their children are going to take care of them, and need neither help nor coercion to do so.

    It’s those flaky, ridiculous heterosexual people that need both carrot and stick to make them take care of their offspring. After all, what heterosexual would love and care for an unplanned child? The very notion is ridiculous.

    We must have differential marriage rights for heterosexual people, because society must tempt stupid heterosexual folk into marriage so that when the condom breaks, those shiftless, no-account straights can be held to their responsibilities as parents.

    Damn those horrid, irresponsible straight people. If they were only trustworthy with their children, we could have equal marriage rights for all!!!

    –sincerely,
    BLAG

  4. Crip Dyke, MQ, Right Reverend Feminist FuckToy of Death & Her Handmaiden says

    Oops –

    It’s those flaky, …

    and the remainder of the comment should have been set off to make it clear that’s where the dubiously sourced quotation of BLAG begins.

  5. raven says

    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.

    This is a bug, not a feature!!!

    If this is all they have, they’ve got nothing.

  6. raven says

    Seriously, The Argument from Broken Condoms fallacy?

    40% of all US children are born outside of marriage. Half of all marriages end in divorce.

    The power of broken condoms is vastly overrated.

  7. says

    You don’t have to go too far down this particular rabbit hole to have forced marriages.

    After all, if marriage is to protect the children of unplanned pregnancies, then every 15-year-old kid who gets knocked up by her 16-year-old boyfriend should be forced to get married.

    And women should be forced to marry their rapist.

    Thinking: Not something the folks at BLAG are familiar with, apparently.

  8. naturalcynic says

    Perhaps they are thinking of the Old Testament law/custom of “You rape her [ she’s knocked up], you keep her”. Most of the children that are a result of rape must be “unplanned”, therefore this is the most obvious case for promoting heterosexual marriage.

  9. steve84 says

    And the Prop 8 people are arguing that marriage is basically nothing but a state-enforced shotgun wedding for people who couldn’t keep their pants zipped and procreated irresponsibly.

  10. Rip Steakface says

    Both my brother and I were born years before our parents ever got married, and my brother was the only intentional one (I’m the older of the two). Clearly I must be the superior brother for being around because of the pull-out method.

  11. says

    But what I don’t get is that they seem to think that if gay people can get married, then the straight people who get married, and stay together for the kids they accidentally had, will stop getting married. Why?

    If gay people get to marry, there will still be teenagers who get pregnant because there school taught abstinence only education, and end up getting married. Letting to men or two women get married won’t stop that.

  12. John Hinkle says

    I… I just can’t seem to tease a point out of their argument. It’s all so besides the point. I know Crip Dyke made a stab at it, but my mouth is still hanging open, and now flies are starting to buzz around.

  13. says

    Um, I’m married to a man and have no intention of ever getting pregnant. If my birth control fails I have no issues with seeking out an abortion. But none of that was ever a factor in my getting married. My mom remarried in her 50s. She had her tubes tied after her second child. Neither of my parents were ever checked for fertility.

    Unless they are proposing to limit marriages to heterosexual fertile couples who don’t plan to use birth control, I don’t see how any of this makes any sense.

  14. jnorris says

    If Congress intended the guy to knock up his girl friend and marry her. why didn’t they make that the law?

  15. D. C. Sessions says

    Lesbian couples have unplanned and uninteded children all the time. Maybe not as often as women in heterosexual relationships, but the fact remains that rapists don’t distinguish.

    So this argument would support one of two alternatives:
    1) Allow female/female marriages or
    2) Force the victims of rape to marry their rapists so that the child can have the benefit of living with both biological parents.

    Considering the religious motives behind DOMA, it’s obvious which they would choose.

  16. D. C. Sessions says

    BTW, on another board the notion was floated that since the lawyer proposing this argument is actually one of the greatest living appellate trial lawyers, he might be making this argument as a code for “there is simply no way to defend DOMA that passes the laugh test, so I may as well make an outright joke of it.”

  17. roggg says

    So the purpose of marriage is to force sexually irresponsible people to stay together for the good of the children? This argument fails totally on so many levels.

  18. scienceavenger says

    The entire argument sounds like it was written in 1950. They pay lip service to the changes over the years, most notably in birth control and access to abortion, but ignore the relevant consequences. The number of unplanned/unwanted parenthood has decreased by a couple orders of magnitude since the precedents they cite.

  19. davideriksen says

    This reads more like an argument to ban divorce than SSM. Not that it’s a good argument for that either.

  20. eric says

    Congress sought to encourage the raising of such children by both their biological parents in a stable family structure.

    Were I the opposing attorney, I’d point out that BLAG has just admitted in their legal brief that marriage creates a ‘stable family structure’ beyond two people just sharing a life together, and thus they have just tacitly admitted that civil unions are not equivalent.

  21. dingojack says

    “only a man and a woman can beget a child together without advance planning, which means that opposite-sex couples have a unique tendency to produce unplanned and unintended offspring”.

    Uh so
    ONLY
    a men and women can have accidental babies (this should not be encouraged, but only a marriage is stable enough environment for rearing such children)
    THEREFORE
    same-sex couples should not be allowed to marry?

    This is their argument?

    So infertile couples, those with rare recessive genetic disorders and those that have had chemotherapy, all who ‘have difficulty’ and ‘require planning’ for their conception of children should not be allowed to marry?
    What of older couples and those who don’t want to (or can’t) have children? Dissolve their marriages?!

    And since there are so many ‘unplanned pregnancies’ which lead to (in some cases at least) adoption, and since growing up with two male or two female parents makes no significant difference in outcome for the child, who better to adopt than than a pair of lesbians or gays in one of those much admired ‘stable marriages’ where unplanned siblings aren’t gonna unexpectedly turn up?

    They really haven’t thought this through.

    Dingo
    ——-
    In redux: ‘hetero sluts get ‘knocked up’ – therefore only hetero marriages!’
    @@

  22. says

    To me it sums up as
    “Same-sex marriage should be illegal because gay people are more responsible parents.”

    I don’t think they think they’re thinking what it is they think they’re thinking.

  23. matty1 says

    D. C. Sessions

    So this argument would support one of two alternatives:
    1) Allow female/female marriages or
    2) Force the victims of rape to marry their rapists so that the child can have the benefit of living with both biological parents.
    Considering the religious motives behind DOMA, it’s obvious which they would choose

    Well 2 is Biblical. Now which side are the defenders of morality again?

  24. abb3w says

    It doesn’t have to be a “good” argument; it just has to be the best legal argument the lawyers can ethically put forward.

  25. Paul W. says

    Hmmm… I expected Ed or somebody to say something about ut the “rational basis” standard, as opposed to “heightened scrutiny” or “strict scrutiny.”

    AIUI, to pass the “rational basis” test, you just have to show that there was some not-entirely-stupid reason for the law that isn’t just animus or religious bigotry. You don’t have to show that that’s the main motivation, or that it is the best or least intrusive way of achieving that goal.

    And that’s a problem because sexual orientations are (by precedent) not a “suspect class” to which heightened or strict scrutiny applies, like sex, race, and religion.

    What needs to happen is that the Supremes admit the obvious and say that of course minority sexual orientations are “suspect classes,” in which should take into account the overall motivations, overall effects, costs to victims, etc., in determining whether a law is acceptable or unconstitutionally discriminatory.

    Right? I’m not a lawyer, or nearly as well-versed in civil liberties law as some other people around here, so somebody correct me if I’m wrong…

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