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Feb 05 2013

Responses to BLAG’s ‘Unintended Children’ Argument

I wrote the other day about the profoundly silly argument used by the Bipartisan Legal Advisory Group in their briefs in the marriage equality cases being heard by the Supreme Court. Their argument is that we have to ban same-sex marriage because only straight marriages can produce accidental pregnancies. Jonathan Chait spots one main problem with the argument:

So the problem here is that you can’t discriminate against people without good cause. You need some distinction to justify it. The traditional distinction that straight people raise kids doesn’t work, since gay couples can do that too. So Clement fell back on arguing that only straight couples have unplanned children. Gay couples don’t get drunk and wake up pregnant. It is, to say the least, ironic that after years of using alleged gay social irresponsibility as a rationale for discrimination against gays, heterosexual irresponsibility is now a rationale for discrimination against gays.

It does make sense in the limited way of thinking that, okay, you might want marriage as a way to force the two straight people facing a sudden pregnancy to get married and raise the baby together. But this is a reason to deny marriage to gays because … there’s only so much marriage to go around? The gays will sign up all the best caterers? Clement has an argument for straight marriage, but how it translates to preventing gay marriage, I can’t fathom.

But this has been the problem all along. Every argument against gay marriage is really an argument for marriage, without any logical connection between premise and conclusion at all. The syllogism would look like this:

Marriage is good and fundamental to society.
Nothing.
Therefore we should prevent gay people from getting married.

That missing second premise is kind of important; it’s also never stated.

My former colleague Dave Weigel hammers this argument as well:

But one of the ways gay couples find children to raise is by adopting them — adopting children who are the unintended product of opposite-sex relationships. In all seriousness, did no one proofread this?

He actually suggests that Paul Clement, the head of the BLAG team of lawyers, is actually throwing the marriage cases by making such bad arguments.

28 comments

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  1. 1
    slc1

    He actually suggests that Paul Clement, the head of the BLAG team of lawyers, is actually throwing the marriage cases by making such bad arguments.

    Nah, he’s just throwing mud at the wall in the hope that some of it might stick. What else is he going to do if there aren’t any good arguments?

  2. 2
    Michael Heath

    Dave Weigel writes:

    [Dave Weigel] actually suggests that Paul Clement, the head of the BLAG team of lawyers, is actually throwing the marriage cases by making such bad arguments.

    That wrongly assumes two things. The first is that the conservative justices will come down on the side with the best arguments. The odds of that happening are slim when it comes to Justices Scalia and Thomas, and most likely Alito and C.J. Roberts as well.

    The second wrong assumption is that the justices rely only on the arguments of the advocates rather than coming up with their own arguments.

  3. 3
    Gregory in Seattle

    They once tried to argue that the sole purpose of marriage was procreation. In 2006, the Washington Supreme Court used that argument to retain the state’s Denial of Marriage Act, saying that:

    The purpose of marriage is procreation.
    There exists a legitimate state interest in preserving marriage for that purpose.
    Same-sex couples cannot have children with each other.
    Therefore, the state may legitimately prevent same-sex couples from getting married.

    That argument didn’t last long, thanks to an amazing initiative filed the following January that would have taken that “logic” to its perfectly reasonable conclusion. The campaign got international attention and was mentioned in several briefs to the California and Iowa Supreme Courts in their decisions that led to same-sex marriage in those states.

    Their one winning legal argument, and marriage opponents have not tried the procreation approach in court since.

  4. 4
    theschwa

    1. Marriage is good for society

    2. ???

    3. Profit!

  5. 5
    Scr... Archivist

    That missing second premise does exist. But BLAG and people like them know that few people still respect the explicit expression of “We hates the gayses. We hates them, we hates them!”

  6. 6
    slc1

    Re Michael Heath @ #2

    Ole MH should be aware that the arguments from both sides are aimed at Justice Kennedy as the votes of the other 8 are already known.

  7. 7
    eric

    Mostly agree with SLC. He’s been employed by his client to make the best anti-gay-marriage legal argument he can. So he’s doing exactly that. Its not his fault if there are no good arguments.

    IMO what he’s donig here is a chewbacca defense or pound-the-table defense. I.e., throwing in something so odd that its oddness might distract the judge from the lack of a real justification.

  8. 8
    laurentweppe

    Marriage is good and fundamental to society.
Nothing.
Therefore we should prevent gay people from getting married.

    Actually the original argument was more like this:
    Gay are inherently evil & vicious creatures
    Therefore we should prevent gay people from existing.

    .
    So long as uttering this lie was socially acceptable, the homophobic bullies had the advantage because they could through veiled threats to strongarm people into submissing to their diktat: after all, if Gays are vicous, harming them and the people who take their side is a virtuous act, therefore if you start defending the pederast too openly, something bad may happen to you, just sayin’
    .
    The thing is, the whole “Gays are inherently vicious” argument is not socially acceptable anymore: it’s still there, and if you have the bad luck to end up in a gathering where 5/6 of the people are homophobes, the big fucking lie is going to come back in full force, in so many variations:

    “Gays are too egoistical”
    “Gays want children as pets”
    “Gays think only about physical pleasure and are incapable of building solid long term relationships”
    “Gays are child molesters”
    “Gays will be too busy having orgies to take care of their children”

    .
    But since they realize that the day when they might end up on the wrong side of torches and pitchforks is not far away, the homophobic bullies don’t dare repeat the big pile of lies in front of the whole public opinion anymore: they’ve had not only to improvise new excuses, but also to change their goal: first: killing & jailing gays ceased to be acceptable, so the homophobes retreated to naked discrimination. Then naked discrimination ceased to be socially acceptable, so the homophobes retreated to petty ways to harm gay people, creating this bizarre logic:
    .
    Gay are inherently evil & vicious creatures, but we don’t have the balls to tell such a despicate lie in public.
    Therefore we should prevent gay people from existing… Except we’re not allowed to kill them, we’re not allowed to jail them, we’re not allowed to condemn them to lifelong poverty and isolation through discrimination, so we’re going to find petty ways to harm them anyway.

  9. 9
    dugglebogey

    The real syllogism is easy:

    Marriage is good and fundamental to society.
    Gay people make me feel all weird inside because secretly I may be gay myself.
    Therefore we should prevent gay people from getting married.

    Mystery solved.

  10. 10
    eric

    Marriage is good and fundamental to society.
    Nothing.
    Therefore we should prevent gay people from getting married.

    I’ll add my own interpretation of the fundie argument to everyone else’s. While I certainly agree that ‘its ickly/we dislike them’ version is accurate, I think that to the extent that they really try and form some sort of raltionale for their hatred, that rationale goes like this:
    (Most) people want to be married; it is good and fundamental to society.
    Some gays will play straight as long as there are social punishments in place for being gay.
    Allowing gays to marry removes one of the few social punisments for being gay that is left; it normalizes gay relationiships.
    Therefore, allowing gay marriage will reduce the number of straight marriages because less gays will play it straight.

  11. 11
    D. C. Sessions

    He actually suggests that Paul Clement, the head of the BLAG team of lawyers, is actually throwing the marriage cases by making such bad arguments.

    I put this argument a while ago, too. It really comes down to “there really is no rational argument to be made here, so I’ll just go through the motions rather than make myself look like a total incompetent trying to pass off shit for chocolate. In the end, the Court isn’t going to rule based on what I have to say anyway.”

  12. 12
    raven

    Their argument is that we have to ban same-sex marriage because only straight marriages can produce accidental pregnancies.

    The Argument from the Broken Condom.

    1. 40% of all US children are born outside of marriage.

    2. Half of all US marriages end in divorce.

    The magic broken condom isn’t very powerful.

    It’s just wrong. Accidental pregnancies happen often to single people and occasionally to gay people.

    It is also irrelevant.

  13. 13
    timberwoof

    While the legal wrangling over this issue is tiresome (and I thought the years-long battle over Colorado’s Amendment 2 was a bother! That was a straightforward sweep.) it is important for the homophobes to be permitted to present their best arguments for everyone to see. When people accuse Judge Walker of bias in his Prop 8 decision, I challenge them to read the opinion and point out to me where the bias lies. I ask them to present the arguments that Walker heard. I tell them that Walker bent over backwards to make sure that the pro-8 side presented their best arguments … and they generally sulk away and perhaps admit that there are no logical arguments against gay marriage.

    But unintended babies … really?

  14. 14
    Modusoperandi

    “Big problem.”
    “Really?”
    “Yup. What we got here is unintended babies.”
    “That sounds bad.”
    “Yup.”
    “So what should we do?”
    “It’s obvious, innit? Stop the queers from getting married.”

  15. 15
    gshelley

    Any time anyone takes advice on anything from the Underpants Gnomes, I have to wonder if they are being serious

  16. 16
    d.c.wilson

    There are really only two real reasons for opposing gay marriage. Either you’re afraid Gawd will break out the smitey hammer on the nation or you just think it’s icky. Neither is a legal argument nor a compelling government interest. This truly is the best they can come up with.

  17. 17
    John Hinkle

    MO@14, That made my face red I was laughing so hard.

    eric@10, Did you have to lay out that argument? It was a good thing MO had that subsequent comment that etch-a-sketched it out of my aching head.

  18. 18
    paulg

    I thoroughly enjoyed Rob Tisinai’s take on the “marriage for procreation” argument:
    http://wakingupnow.com/blog/traditional-marriage-arguments-lead-to-polygamy

  19. 19
    screechymonkey

    you might want marriage as a way to force the two straight people facing a sudden pregnancy to get married and raise the baby together. But this is a reason to deny marriage to gays because … there’s only so much marriage to go around? The gays will sign up all the best caterers? Clement has an argument for straight marriage, but how it translates to preventing gay marriage, I can’t fathom.

    Well, duh.

    Marriage is so awesome that, if they can’t marry someone of the same sex, gays will marry someone of the opposite sex instead. (It wasn’t internalized homophobia and social pressures that made all those gay Christian Republicans marry women, it was the desire to file joint tax returns!)

    Then, those gay men will accidentally impregnate their wives during all that sex they’re having, leading to the birth of unwanted children whose parents are in a sham marriage, which is good because….

    Damn, thought I had something there.

    But seriously, a lot of the gay marriage opposition is rooted in the idea that homosexuality is a choice, and that we can “induce” people to be straight by denying gay people rights and social acceptance.

  20. 20
    Ed Brayton

    raven wrote:

    The Argument from the Broken Condom.

    Damn, I wish I’d thought of that.

  21. 21
    footface

    All of which highlights the fact that “gays shouldn’t be able to marry” is a premise, not a conclusion.

    It’s like conservatives and tax cuts. They pretend they have a principled stand but their arguments usually sound like this: “The economy’s doing great. Therefore, the rich need tax cuts.” “The economy’s in trouble. Therefore, the rich need tax cuts.”

    Same deal here. “They’re irresponsible. Therefore, gay marriage is bad.” “They might actually be more responsible. Therefore, gay marriage is bad.”

  22. 22
    Ramel

    He actually suggests that Paul Clement, the head of the BLAG team of lawyers, is actually throwing the marriage cases by making such bad arguments

    I’ve always said that the best way to defend the indefensible is badly.

    1. Marriage is good for society

    2. ???

    3. Profit!

    Shouldn’t that be spelled “prophet”?

  23. 23
    Jim

    The most common variant I hear is:
    Marriage is good and fundamental to society.
    Gay people are neither good nor fundamental to society.
    Therefore we should prevent gay people from getting married.

    It still fails the stupid test, but there is a step there.

  24. 24
    Michael Heath

    Jim @ 23 nails it.

  25. 25
    pelamun, the Linguist of Doom

    While I don’t buy it, I think the conservative argument is something like cohesion of society being threatened by same-sex marriages.

    When I used the same arguments like “why would someone’s marriage be threatened by someone else’s?” an anthropologist friend (from France) told me that the French anti-gay activists believe that same-sex marriage will further the dissolution of societal values in general. I was miffed at my friend’s neutral stance, and do not believe the conservative anti-gay position is justifiable at all, but it may also help in understanding where the other side is coming from. In France the underlying sentiments are not necessarily religious, but may also stem from some kind of naturalistic homophobia, probably.

  26. 26
    dingojack

    pelamun’s comment made me ask myself – so when teh ghay can legally marry:

    and the sky doesn’t fall
    and the streets are calm and orderly
    and no fiery floods and rains of blood occur
    and there is peace (or at least rumours of peace)
    and dogs and cat still chase each other
    What will they panic about then?

    What happens when the prophecy turns out to be false?

    Dingo

  27. 27
    laurentweppe

    an anthropologist friend (from France) told me that the French anti-gay activists believe that same-sex marriage will further the dissolution of societal values in general.

    The French anti-gay activists are in no way shape or form different from the american ones: like the american ones, their position is based upon the “Gays are vicious perverts” tropes, like the americans ones, they don’t dare to say it in public because they realize that the zeitgast is against them, and like the american ones, they opted to wank some bullshit pseudo-argument about “the dissolution of societal values” to justify themselves.

    The main difference is that until very recently, a majority of the rank & file french conservatives were in favor of gay marriage, until they rejoined the homophobes ranks when a socialist became president because they want this progress to be part of a left-wing politician’s legacy.

  28. 28
    laurentweppe

    until they rejoined the homophobes ranks when a socialist became president because they Don’t want this progress to be part of a left-wing politician’s legacy, I mean.

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