The Bipartisan Legal Advisory Group has filed their final reply brief in Windsor v United States, the Supreme Court case challenging the constitutionality of Section 3 of the Defense of Marriage Act. Unsurprisingly, it’s full of bad arguments. Like this one:
First, DOMA’s opponents challenge as irrational the long-held cultural judgment that a child’s biological parents are, other things being equal, the child’s natural and most suitable guardians. Ms. Windsor even claims (at 45) that current law does not recognize this principle. That is mistaken: Every state recognizes that a child ordinarily should be raised by his or her biological mother and father, if they are able and willing.
To be sure, children can be raised by their unmarried biological parents and married couples often raise children without a biological link. But none of that denies that marriage as an institution is linked to the unique tendency of opposite-sex couples to produce unintended offspring and the societal interest in providing a stable structure for raising such children. And to the extent that marriage is an answer to the procreative potential of opposite-sex relationships, it is not irrational to decline to extend it to same-sex couples who by definition do not have the same propensity for their intimate acts to produce unplanned offspring.
Okay, let me see if I have this straight (pun intended)…
Marriage is very important for providing a stable structure in which to raise children, but this apparently applies only to unintended children. A planned child borne by a gay couple, or a child from a previous straight relationship being raised by a gay parent, or a child adopted by gay parents apparently does not — for special, magic, unspecified reasons — get, or perhaps deserve, any of the wondrous benefits of having married parents that the children, intended or unintended, of straight parents. How’s that again?
And even if they are absolutely correct that the government has a particular interest in protecting straight marriages in order to protect the children that might unintentionally result from such a union, how does DOMA in any way further that interest? Federal recognition of same-sex marriage will not take a single child away from heterosexual parents in a stable marriage. Yes, marriage is a very good thing for children, but since allowing gay couples to get married, or recognizing gay marriages at the federal level that are performed in states that allow them, won’t have any effect whatsoever on even one single straight marriage anywhere in the entire world, how does this law help preserve the unique benefits of straight marriages? It’s just so utterly irrational.