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BLAG’s Final Arguments on DOMA

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.

Comments

  1. slc1 says

    I must say that I fail to understand the emphasis on unplanned children. Are the supporters of DOMA now claiming that a planned child of a heterosexual couple is now somewhat lesser then an unplanned child of a heterosexual couple? Are the children of two of Mitt Rmoney’s sons which were certainly planned because they required IVF due to his son’s low sperm count, now, somehow, not up to snuff? This argument is so silly that it boggles the mind that even a moron like Justice Thomas could buy it. This is nothing but throwing manure at the wall and hoping that some of it sticks.

  2. lofgren says

    So we need to prevent gays from getting married because if they get married then straight couples are less likely to produce unintended children? I’m really not seeing the argument here.

  3. says

    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 …

    Apparently, straight parents who spend a lot of time and money on in vitro fertilization should not get the benefits of marriage either. Socially unimportant planners!

  4. marcus says

    You fine people are obviously missing the main point of this articulate and well-reasoned arguments against federal recognition of same-sex marriages.
    AAAAGGGGHHHHH! Teh Gheys!!11one!!!qqq!!.

  5. tuxedocartman says

    Since they’ve tried stripping abortion rights down to nothing, what about rape babies? Shouldn’t lesbians be allowed to marry in case one of them is sexually assaulted one day, and forced to bear and deliver a child? Wouldn’t that be considered an unplanned pregnancy? How is that different?

    Grrr… words fail me to describe the level of hate I have for conservative pricks these days.

  6. lofgren says

    It strikes me that this is not really an argument against gay marriage, but rather an argument in favor of banning divorce for the parents of unintended children (or for compelling them to get married in the first place).

  7. Trebuchet says

    You don’t get it — planned children are a very, very, bad thing! Planning implies evil contraception, which we all know is un-Christian, not to mention a Commie-Nazi-Islamic-Obamaist plot.

  8. lofgren says

    Shouldn’t lesbians be allowed to marry in case one of them is sexually assaulted one day, and forced to bear and deliver a child?

    The bible offers an elegant and totally just and righteous solution in these situations. First the lesbian is forced to marry her rapist. Then when the baby is born, the woman is stoned to death for being a lesbian. Problem solved.

  9. raven says

    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.

    The Argument from the Broken Condom again.

    1. There is nothing unique about straight people producing unintended children. A lot of gay people have children and some of those children were unintended. I don’t know if Karl Rove was intended or not (or care) but his father was gay.

    2. A huge number of children are produced unintentionally by single people.

    It’s almost half. 40% of US children are born to single mothers, some intentionally, many unintentionally.

    3. The divorce rate is 50%.

    4. A large number of US children are not being raised by two biological parents, intentionally produced or not.

    and the societal interest in providing a stable structure for raising such children.

    Cthulhu, this is stupid. If gay people get married, it doesn’t mean that straight people can’t get married. It is simply an irrelevant statement.

    If this is all they have, they should lose on the basis of stupid and irrelevant arguments.

  10. Michael Heath says

    One of the most disconcerting aspects of our times is that in the public square, we so rarely find two, let alone many, competing arguments which are all compelling and therefore eventually lead to far superior conclusions based on credible competition. We see these fundamental defect on economic policy, financing health care, science vs. denialists, and on and on.

    In well run business operations I found the exact opposite, great arguments from a number of aspects that sometimes made it difficult to determine which option advocated was the best course of action. Not that those companies suffered from “analysis from paralysis”. They didn’t; they instead picked one and moved out, which is one reason they were well-run.

    This context has me continually siding with public policy prescriptions I frequently find mediocre, like the 2009 stimulus, simply because the opposition is arguing from a reality which does not exist where their positions would be catastrophic if followed. Even when it comes to gay rights, we see the side which is clearly taking the moral and justified position unable to get their opponents to confront arguments which reveals the vacuity of their arguments, such as the existence of the equal protection clause and it implications, along with the falsity of the bigots’ arguments and their false claim they alone defend the Constitution and our liberty rights. While they instead defend biblical dogma they believe justifies their hating on gays and violating the principles of the DofI and Constitution.

  11. says

    Not surprisingly, this sounds very similar to the Washington Supreme Court plurality ruling in Anderson. v. King County, where in 2008 the court said:

    1. The purpose of marriage is procreation.
    2. The state has a legitimate interest in preserving it for that purpose.
    3. The ban on same-sex marriage is constitutional because of this legitimate interest.

    The ruling then went on to say that this does not apply to straight couples, even if they are post-menopausal, sterile or otherwise unwilling or unable to have children together.

  12. frog says

    As the product of a planned pregnancy–yes, they had those back in the 60s!–I’m feeling vaguely insulted.

    From the statement:

    “And to the extent that marriage is an answer to the procreative potential of opposite-sex relationships, …”

    Yes, that extent would be ZERO. Do these folks not understand that babies are caused by having sex, not by getting married? This is what “abstinence” education gets you: a bunch of fully-grown adults who don’t know where babies come from.

    This is word-salad made of wilted lettuce, wormy cucumbers, and dressing with a “use by” date so old you can’t even read it anymore.

  13. says

    I think the argument is that the main purpose of marriage is so people can raise their biological children. Sure, it doesn’t always happen that way, but it isn’t discriminatory to prevent marriages that don’t meet that criteria. It seems Mike and Carol Brady had an invalid marriage.

  14. anubisprime says

    For possibly the last 75 yrs the conservative agenda has been best served by circulatory convoluted twisted argument and flatulent writing…because the attitude has always been it does not matter how cogent the argument is… the Justices traditionally serve the conservative manifesto and status quo while only pretending neutrality.

    The paperwork is just for the shape of the thing…not for nuanced considerations.

    That has always been so…it was how DOMA was passed in the first place!

  15. matty1 says

    I’m actually going to try and parse this as sympathetically as possible.

    1. Where children are planned that itself proves their parents are committed to them
    2. Where children are unplanned parents need an extra incentive to care for them, or at least to care for them together
    3. The legal benefits of marriage provide such an incentive
    4. These benefits should only be given where they are needed to provide an incentive for childcare
    5. Where no incentive is needed, because children are planned or are absent the benefits should not be offered

    This would indeed provide grounds for banning gay marriages, along with a huge number of straight ones but it just doesn’t get you to a ban on gay marriage alone.

  16. matty1 says

    I should add that if my reading is right it requires a far more radical redefinition of marriage than marriage equality does. Extending the legal status of marriage to gay couples would do nothing to the status of existing straight marriages, redefining marriage as something available only in the specific circumstance of unplanned children would make thousands of straight marriages null and void.

    Protect marriage from radical change, oppose BLAG.

  17. kemist, Dark Lord of the Sith says

    What I don’t get from all this piffle about protecting unplanned children is that is comes from people who endlessly go on about personal responsibility and individualism.

    What aren’t they like, “don’t have unplanned children in the first place, morons !”, when everybody knows perfectly well how to prevent them.

    And if they want to protect “unplanned children” why don’t they encourage measures which help single mothers, who are more likely to have “unplanned children”, or children they might have wanted but hadn’t exactly planned on raising alone because boyfriend ran away ?

  18. says

    Hands up, who was an unplanned child?

    *raises hand*

    Maybe everyone in BLAG was as well, and the thought causes them pain. Maybe they can’t bear the thought of gays getting married because any– okay, most of– the children they have will be planned. Maybe BLAG opposes not just Planned Parenthood, but planned parenthood.

  19. TxSkeptic says

    to the extent that marriage is an answer to the procreative potential of opposite-sex relationships

    I don’t really see “procreative potential” as a question.

    As for unplanned vs planned children, @7 Trebuchet nailed it. Only gawd is supposed to do the planning of your children, and only after an appropriate marriage sanctioned by him.

  20. says

    If it’s a free givt for one group from the State, doesn’t that make it an entitlement? I thought “entitlements” were bad. And won’t just giving these benefits to heteros make them lazy? Shouldn’t they have to fight for marriage like gay couples?
     
    frog “Yes, that extent would be ZERO. Do these folks not understand that babies are caused by having sex, not by getting married?”
    Wrong! “First comes love, then comes marriage, then comes baby in a baby carriage”. It’s right there in the Constitution.

  21. matty1 says

    “First comes love, then comes marriage, then comes baby in a baby carriage”. It’s right there in the Constitution.

    Is that before or after the bit about arming bears?

  22. Ichthyic says

    I don’t know if Karl Rove was intended or not (or care) but his father was gay.

    And just look how HE turned out!

    Obviously the best argument against gay marriage evah!

    :P

    It amazes me that ANY individual can make these kinds of arguments and NOT be deemed irrational bordering on mentally unstable, let alone someone purporting to be a lawyer.

    Heath above mentioned the AGW deniers, the decryers of universal health care, etc., but really, I have seen at least LOGICAL, if still really wrong, arguments coming in those circles.

    This “Gay Bandido” argument
    we find amongst those trying to prevent marriage equality is just insane.

  23. says

    You have to feel sorry for people who find it necessary to defend the indefensible, when the only arguments they have to lean on are nonsensical.

    Then you should probably remember that there are people who are suffering right now, who are discriminated against and reviled and have the law of the land set against them through no fault of their own, and we can all join together in saying “fuck you” to the people who try to defend the indefensible like this.

  24. meursalt says

    OK, the original is a bit convoluted. I’ve seen some admirable attempts above at boiling it down into something coherent. Here’s my take:

    The only salient feature of marriage is that it tends to provide relatively good outcomes for children born from unintended pregnancies. Therefore, it’s rational not to extend this privilege to same sex couples (and, I guess it follows, to infertile straight couples).

    This implies, does it not, that all that other love, partnership, share-the-rest-of-your-lives stuff is utterly irrelevant the value of marriage and the state’s interest in regulating it?

    Am I parsing this correctly? I’m trying to be charitable in my interpretation, so someone please tell me if I’m reading this wrong. And if BLAG considers this a compelling argument, why aren’t they advocating denying marriage to infertile couples, regardless of sex? Am I incorrect in extending this argument to them? It’s one thing to see this argument used in an op-ed piece, but I’m kind of baffled to see it used in court, by lawyers. I try to keep an open mind and seriously consider arguments even against positions I have held for years and reached rationally. Is this really the best they’ve got? I feel disappointed, cheated, almost.

    Wait, tell me again, which side of this argument is trying to destroy the concept of marriage as a loving bond between one man and one woman? Which side is trying to redefine one of the fundamental institutions of society? I don’t recall, growing up in a Christian household in predominately Christian communities, ever being told the whole point of marriage is to be ready for accidentally knocking someone up. I actually have more respect for someone arguing based on Leviticus, than anyone trotting this weak shit out in court, and the Supreme Court at that.

  25. says

    Ed said

    A planned child borne by a gay couple…

    Why would a homosexual man and a homosexual woman want to be married and have a child? Oh, wait, you meant a child borne by two people of the same gender.

    I wasn’t aware we’d reached the biological milestone in which a baby didn’t require parts from two different genders.

  26. says

    So, the fact that a gay couple is incapable having an unplanned child that the may not have even wanted and can only become parents when they take affirmative steps is somehow a reason why they shouldn’t get married and have a family?

  27. Nomad says

    Let me take a stab at this, I’ve been thinking over the various interpretations put forth. I keep focusing on the right wing’s problems with sex. Some have already brought up what should be a reasonable objection to this whole broken condom argument, that it seems to basically tell every couple that made a decision to have kids and planned it out that they don’t matter and that marriage is all about the unplanned pregnancies.

    What I suggest some are not taking into account is the right wing’s now fully revealed disdain for birth control. I didn’t believe it when I first heard it, surely these people wouldn’t actually attempt to outlaw condoms. Yep, they would, I’ve seen it now, I’ve seen the angry declarations that there should be no right to privacy in the bedroom.

    What I’m suggesting is they’re not just forgetting that some people plan out children and that they deserve the benefits of marriage as well. They’re operating on the belief that all children should be unplanned, that babies should be the uncontrollable potential consequence of sexual activity. Thus all straight marriages should result in the potential of babymaking, ignoring issues of infertility, whereas gay marriages can’t.

    It’s not so much that the planned families don’t matter, it’s that they’re the lesser of two evils. The fundies will go after them later, once they’ve gotten the gays pushed firmly into the closet.

  28. gshelley says

    @meursalt
    Or it could be that they are arguing that couples are going to have sex. If a same sex couple does this, it doesn’t matter as there will be no unintended children, but an opposite sex couple can have unintended children, so if the couple are married then the child will be born into a stable home.
    The difficulty with trying to understand this is possibly from assuming there is some rational connection to their argument and any actual possible real world outcomes.

  29. Nomad says

    Oh, and JD, when you said:

    I wasn’t aware we’d reached the biological milestone in which a baby didn’t require parts from two different genders.

    Well then you need to get caught up. I mean, I know that not everyone can be expected to get caught up to things that happened as recently as 2004, but the principle is sound, all you need are two eggs. It hasn’t been done in humans yet, I’m not sure what progress has been made on it but problems probably still remain, but these are problems that can be overcome. Reproduction without men is entirely possible.

    However that’s dodging the point anyway, isn’t it? I mean if a heterosexual couple where the man couldn’t produce sperm used artificial insemination using donor sperm, would you be jumping in to correct them if they referred to it as their child? If the man used the common form of referring to the pregnancy as saying “we’re pregnant” would you be interjecting, waggling your finger in his face to remind him that it’s not his child?

  30. raven says

    I wasn’t aware we’d reached the biological milestone in which a baby didn’t require parts from two different genders.

    You need to get out more.

    Majority of Children Live With Two Biological Parents – Census Bureau
    www. census. gov › Newsroom › Releases › Children

    Feb 20, 2008 – Majority of Children Live With Two Biological Parents. … Nearly 45 million (61 percent) of the nation’s 73 million children … regardless of the parents’ marital status, according to a U.S. Census Bureau report released today.

    39% of American children are being not being raised by two biological parents. That is 28 million children.

    FWIW, that nunber is probably higher among fundie death cult xians. They have higher rates of teenage pregnancy and divorce than the general propulation. Being an Oogedy Boogedy religionist isn’t good for much except hate and hypocrisy.

  31. meursalt says

    I didn’t cover this in my earlier comment, but I’m a bit interested that BLAG’s language seems to assume and imply that marriage, even straight marriage, is not a right preserved by the Constitution, but a privilege to be extended by the government if the government finds it in its interest. I haven’t seen anyone argue from this angle before, and I’m not sure how well it would go over with the typical opponent of SSM.

    By and large, aren’t they (the right-wingers, and I know this is a broad and disparate category) mostly of the opinion that straight marriage, within the rules of their respective religions, is an inalienable right?

    Seriously, IANAL, but this particular argument seems dismissable based on “life, libery, and pursuit of happiness.” While BLAG may have shown a state interest in promoting straight marriage, they certainly haven’t shown a state interest in prohibiting alternative marital agreements between individuals. It also seems like the Ninth Amendment would apply here too. Maybe someone with more legal background can elucidate: in U.S. law, is marriage ever considered a privilege extended by the state, as opposed to a right interpreted and protected by the state? Those are fundamentally different concepts, correct?

    I need to do more reading on the subject and the arguments presented in this particular case, but these all strike me as red flags.

  32. says

    I don’t have the numbers at my fingertips but I’m surprised the “2 biological parents” argument gets a nod after WWI and WWII. Throw in the spanish flu for good measure and there were a lot of kids that were raised by aunts and uncles. But if biological parenting is so important, why aren’t the wingnuts screaming about divorce? Oddly, lots of kids get raised by one parent (as has happened throughout history) and this does not appear to cause long-term disaster.

  33. slc1 says

    Re raven @ #9

    It is my information that Karl Rove’s stepfather was gay, not his biological father.

  34. says

    “What aren’t they like, “don’t have unplanned children in the first place, morons !”, when everybody knows perfectly well how to prevent them.”

    That’s what “Abstinence Only” is for, to make sure that they DON’T know how to prevent pregnancy.

  35. gshelley says

    Having read through the brief, I keep having a Princess Bride moment
    “You keep using the word ‘rationally’. I do not think it means what you think it means”
    Seriously, are they expecting people without a strong ant-gay commitment to be persuaded by these arguments?

  36. says

    I have a friend who is homophobic (yeah, I know, how can he be a friend–fuck it, he is) but not a basher. He loves to hunt, I think that the next time the subject comes up I’ll ask him if he knows that there are bucks that are teh GAY. That orta engender some lively conversation.

    It appears, at least amongst non-humans, that homosexualtiy is a minority orientation and a non-threatening one. I wonder if people who raise animals or hunt them ever think stamping out teh GAY in nature is a worthwhile or even sane idea.

  37. kemist, Dark Lord of the Sith says

    That’s what “Abstinence Only” is for, to make sure that they DON’T know how to prevent pregnancy.

    I also don’t get how people can think “Abstinence Only Sex Ed” even makes sense.

    It’s a bit like giving the kids “Fasting Only” nutrition classes.

    WTF do you even learn in those things beyond “don’t do it” ? For people who worry about every fraction of a cent spent on things like education, health and welfare, they’re awfully oblivious to the actual usefulness of the programs they spend on.

  38. cjcolucci says

    Why is this argument in the brief on DOMA, when it belongs, if anywhere, in a Prop 8 brief? This is, probably, the best bad argument for opposite-sex marriage: (1) people have sex; (2) sometimes kids result; (3) kids need to be cared for; (4) the institution of marriage provides an off-the-shelf, convenient legal relationship to assign childcare responsibilities to procreators; (5) in the old days, most pregnancies were “unplanned,” and there was no need, or even ability, to distinguish between responsible planners and irresponsible, spontaneous procreators; (6) therefore, it made sense to limit the institution of marriage to people who could be expected to procreate, possibly without planning, but it was just too damned inconvenient to start carving out exemptions for opposite-sex couples who were old, infertile, or ahead of the curve on contraceptive technique; (7) so no need to extend the system to same-sex couples, who, in those days, couldn’t procreate without the cooperation of (or the rape by) someone outside the couple.
    Not a great argument, but not utterly stupid. But, at best, it is an argument for why a state that wants to limit marriage to opposite-sex couples might reasonably choose to do so. It has nothing to do with DOMA, which turns on its head the normal federal practice of handing out spousal benefits to whoever the various states say is married and forces the federal government to inconvenience people who are legally married in their own states.

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