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Jan 27 2013

Same-Sex Marriage Opponents Increasingly Desperate and Stupid

Wow. They’re really getting desperate.

Headline and subhead from the Los Angeles Times:

Gay marriage opponents take unusual tack with Supreme Court
Lawyers defending the Defense of Marriage Act and California’s Prop. 8 argue that marriage should be limited to opposite-sex unions because they alone can ‘produce unplanned and unintended offspring.’

Quote:

“It is plainly reasonable for California to maintain a unique institution [referring to marriage] to address the unique challenges posed by the unique procreative potential of sexual relationships between men and women,” argued Washington attorney Charles J. Cooper, representing the defenders of Proposition 8. Same-sex couples need not be included in the definition of marriage, he said, because they “don’t present a threat of irresponsible procreation.”

Wow. Just… wow.

This argument is so stupid, so desperate, I almost wondered for a moment if these lawyers were deliberately tanking their own case.

I mean… set aside, for the moment, the notion that the primary purpose of marriage is the shotgun wedding. Set aside, for the moment, the notion the primary purpose of marriage is to encourage people to stick together who otherwise wouldn’t want to, because they “irresponsibly” (their word, not mine) got pregnant. (A notion that’s grossly insulting to just about every married person — including the straight ones. Okay, I’m not doing a very good job of setting it aside, am I?)

According to this logic, these folks should be proposing a ban on marriage for infertile straight people. After all, if the primary purpose of marriage is to encourage couples to stay together if they unintentionally get pregnant, there’s no reason for infertile straight people to be married. If you’ve had a hysterectomy, if you’ve had a double orchiectomy, if you’re post-menopausal, if you have untreatable erectile dysfunction, if for any other reason you can’t conceive children without “substantial advance planning” (again, their words)… no marriage for you. You’re not who marriage was made for.

Oh, it doesn’t make sense to have a separate legal category for infertile straight couples? It’s okay to let infertile straight couples slip in through the cracks, even though they’re not who marriage was made for, because it doesn’t make sense to have a separate legal category for them? Then why on Earth does it make sense to have a separate legal category for same-sex couples?

In a weird way, this argument makes me hopeful. Because you know what? They are desperate. They are grasping at straws. They got nothin’. They are proving to everyone with a shred of sense that the opposition to same-sex marriage is bankrupt. It’s morally bankrupt, and it’s logically bankrupt. Once they let go of the religious arguments — once they let go of “Gay marriage makes Baby Jesus cry,” since that really isn’t going to fly in front of the Supreme Court — their arguments become increasingly contorted, increasingly stupid, increasingly laughable, increasingly desperate.

They got nothin’.

Let’s just hope that the Supreme Court sees that.

23 comments

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  1. 1
    flyingteacosy

    He mostly seems to think his best ploy is to just say “unique” as many times as humanly possible.

  2. 2
    flyingteacosy

    Also, I find it rather amusing that he sees different-sex couples as a ‘threat’.

  3. 3
    Christoph Burschka

    According to this logic, these folks should be proposing a ban on marriage for infertile straight people.

    Or non-pregnant people for that matter, or any couples who are shown to be in a committed relationship already. After all, they don’t need it.

  4. 4
    sillose

    just…. wow. i have never suggested banning straight marriage and making it an exclusively gay thing before, but you know, i think they’ve shown me the light. maybe without marriage they will stop contributing so much to overpopulation. gay only marriage!

  5. 5
    Mark Hall

    I have to agree, Christina. If you have good arguments, you use good arguments. If all you’re using is stupid arguments, then chances are you’ve run out of good ones.

  6. 6
    Loqi

    I’m speechless. That’s so unbelievably stupid that it made something in my brain pop. BRB, nosebleed.

  7. 7
    crowepps

    To be fair, however bad this argument is, they have consistently included it from the beginning, and the courts have consistently rejected it from the beginning. An appeal has to proceed on the already established record, and since they didn’t bother to put on more than one witness, they just don’t have anything else.

    “Although the proponents of Prop 8 raised the responsible procreation argument at both the district and circuit court levels, each court rejected that framing, focusing instead on the fact that we as a society have come to look at marriage as a institution based around love and commitment and not simply as a channeling of the procreative act.”
    http://equalityontrial.com/

  8. 8
    Randomfactor

    Yeah, this may be the best argument they can state with a straight (pardon the pun) face.

    Besides, abortion exists as an alternative for accidental conception–and I suspect THAT burns their hides worse than the prospect of same-sex marriage.

  9. 9
    doublereed

    You don’t seem to get it. The entire ‘pro-family’ movement is completely anti-family. It’s the best example of doublespeak in our lifetime.

    Their entire purpose is to prevent families from being created and make it harder for families to do things. But it’s not just this. Their arguments are completely based around the idea that family is NOT about love and commitment. Their arguments always base the idea of ‘family’ on whether your bits dangle or not. That is their idea of family. Think about how incredibly insulting this line of reasoning really is to married couples. It’s not offensive to gays as much as it’s offensive to marriage and family.

    It’s absolutely amazing.

  10. 10
    Gregory in Seattle

    This argument was successful in Washington State in 2006. This was the response.

  11. 11
    Gregory in Seattle

    Let’s try this again… This was the response

  12. 12
    Jadehawk

    I just can’t quite wrap my head around “a threat of irresponsible procreation”, and how straight marriage is ameliorating it. (or how gay marriage would prevent this amelioration)

  13. 13
    Forbidden Snowflake

    Heh, I’ve heard a similar argument from someone on a forum years ago (she was arguing against homosexuality in general, and said that same-sex-sex [what a clumsy phrase] was immoral because it couldn’t produce babies, and that it’s immoral in a way that different-sex-sex with contraceptives isn’t, because heterosex with contraceptives could still accidentally produce babies), and have always thought is was the stupidest argument I’ve ever heard.
    Also, I don’t see how centering marriage around procreation helps their case, if it’s then possible to say that the institute of marriage is made for procreation, but extended to all, including non-procreative, couples in the interest of equality.

  14. 14
    doublereed

    You must understand that the ‘pro-family’ movement is the best example of doublespeak possibly in our lifetimes.

    It’s not just that all their actions are attempts at destroying families, preventing families, or just making legal things more complicated for families. All those things are true, but it’s not JUST that. Their arguments in particular all attest that marriage and family is NOT based on love, commitment, bonding etc. They all claim that family and marriage is determine by whether your bits dangle or not. This is fundamental to their movement.

    So these kinds of arguments shouldn’t be surprising. Their whole movement is built to insult and degrade the institution of marriage as much as possible. It’s not offensive to gays so much as it’s offensive to families.

  15. 15
    TGAP Dad

    This point strikes me as so weird, that it makes me think I’m missing something. After all, the legal team arguing in support of DOME and Prop 8 is a top-notch bunch. Which makes me wonder if the (twisted) reasoning goes like this:
    - It is in the state’s interest to get a handle on unwanted and unintended pregnancies, and has a vested interest in seeing children raised by a married couple,
    - The state discourages unmarried people from engaging in sexual behavior as a means of furthering this goal.
    - Since same-sex couples are unable to have children, intended or otherwise, we needn’t consider their marital status in pursuit of the goals set forth earlier, thus we are free to exclude them from the civil covenant of marriage.

    Is there anyone on this blog who read the arguments, and can tell me whether I’m close or out to lunch?

  16. 16
    karmacat

    When I read about this, I kept thinking he is making a good argument for widely available birth control, especially when he says “irresponsible procreation” (would be a great name for a band).

  17. 17
    Bronze Dog

    Their arguments are completely based around the idea that family is NOT about love and commitment.

    And that is my perception in a nutshell. As I see it, this culture war is about the nature of family and marriage. We want it to be about love and commitment. We want civilized marriage. They want it to be about biology, political power, and money. They want barbarian marriage.

  18. 18
    jnorris

    Gay marriage is bad because straights make booboos? The Tea Party is some piece of work.

  19. 19
    John Horstman

    While there are certainly unplanned pregnancies, there is no such thing as an unplanned offspring. The phrasing presupposes that pregnancy inevitably results in the birth of an offspring. Pregnancy results in a new person over the course of nine months or so, and a woman is almost always going to know she’s pregnant for a majority of that time. Unintended and perhaps undesired offspring? Sure: coerced pregnancy is a sad reality faced by some women, and Republicans seem hell-bent on writing it into the law books. Even in those situations, you can bet the woman is planning on how best to manage having a child (because she can’t not have one). Offspring can only possibly be unplanned when the technology for abortions does not exist (or is rendered categorically inaccessible). Otherwise, every child is planned, though perhaps not by the woman gestating it, and perhaps not before one becomes pregnant. (Just in case it’s not clear, I think this state of affairs sucks and reproduction-management services from contraception to abortion to pregnancy to neonatal care should be made freely available.)

    They’re definitely running out of approaches, but then I’m not sure any of the ‘reasons’ asserted to oppose same sex marriage is consistent with reality.

  20. 20
    anastasia

    I’m not saying _any_ of this makes sense to me. However, this is what the Roman Catholic Church says:

    The current canon of the Roman Catholic Church states that a couple cannot get married in the church if either couple is impotent. Note that impotent is not the same as infertile. This is an absolute impediment, meaning that only the Pope himself could allow a dispensation.

    If a woman has had a hysterectomy or has no ovaries but still has a sexually-receptive vagina, she is not considered impotent. But if she has had surgery or an accident such that an erect penis cannot enter a vaginal opening, she is considered impotent. A surgically-constructed vagina could allow marriage, but the anus is not allowed to qualify.

    If a man is able to eject semen (even if with artificial support such as a pump), he is not considered impotent, even if his sperm are malformed or so minimal as to be effectively infertile. If he cannot, he is considered impotent.

    If either partner is impotent before marriage, they will not be allowed to marry in the Catholic Church, because the marriage cannot be consummated. If the impotence happens after the marriage consummation, that is not a problem.

    Why the distinction? It has been explained this way: “The substance of marriage is men and women who are open to conception. The accident is whether they actually do conceive, which is left to God. A couple may be unable to conceive. But their hearts, minds, and souls were open to having children, while their organs were not.”

    I recall learning that infertility used to be an impediment to marriage and it was changed to impotence, but I cannot currently find a reference for that.

    Also by Catholic teaching, before marriage and after marriage (whether by widowhood or separation), masturbation is not allowed. Within marriage, no sexual activity in which orgasm occurs apart from the penis inside the vagina is allowed. (There is some ambivalence whether oral or anal sex is allowable without orgasm.)

    This is because every act of sex must be open to having children. This is why the rhythm method is allowed: You can avoid having sex when the woman is ovulating, but you can never have sex that is not open to conception.

    Folks who marry in the Roman Catholic Church still have to sign a form committing that their marriage is open to as many children as God wishes and that all will be baptized as Catholics.

    This is the same line of thinking that has led the church to oppose all in vitro fertilization and all surrogacy, because all sex must be open to conception and all conception must result from marital sexual relations.

    This is the same line of thinking that leads the church to oppose homosexuality.

    Of course, couples who get fertility assistance or use birth control (as 98% of Catholic woman have done) or folks who masturbate can confess and get absolution .On the outside, even when the Catholic birth rate crashed, folks had the polite fiction of infertility, and abortions could be explained as miscarriages. There is a whole annulment industry in the church, even though ‘divorce’ is never allowed. Elderly couples could get married if the man could avoid saying that even Viagra couldn’t help him. Cohabiting couples could refrain from mentioning their living arrangements or could, for a time, be tolerated if they were officially engaged.

    Many lesbian relationships, if publicly chaste, were politely ignored as ‘those two spinster aunts.’ Estimates indicate that about one third of Catholic priests being gay (with estimates of about half being celibate at any time), since this was, for many men, the only way to stay in their families or their church. A transgendered person could quietly transfer to a new parish during transition.

    In all these ways, folks could just give lip service to this canon and the priests and bishops could go on preaching their strict policies with the canon unchanged and the conservative and the liberal parishioners could sit next to each other in the pews and pretend none of that mattered.

    But there is no polite fiction that can pretend away openly lesbian or gay relationships or their children.

    So it is not that the Roman Catholic Church has such an unbelievably huge issue with LGBT folks as such. It has issues with masturbation (everybody), premarital and post-marital sex (almost everybody), extramarital sex (many people), abortion (about a third), non-vaginal sex (everybody), birth control (essentially everybody), divorce (a majority of people), alternative fertility (an increasing number), and stem cell research (increasing) as well as homosexuality (less than 10 percent).

    That last part appears to be a small part. The problem is that it _appears_. It cannot be made invisible.

    And it cannot be accepted without tearing at the foundational premise and acknowledging the reality of some if not all of the rest.

  21. 21
    Paul W.

    TGAP Dad et al.,

    I suspect that this is not really unexpected or unusually desperate—they’ve always been hard up for actually good reasons for denying equal marriage rights—and has everything to do with the so-called “rational basis test.”

    (DISCLAIMER: I am not a lawyer, and there are people over at Ed Brayton’s blog who are way mor up on this stuff than me, including Ed. Corrections and elaborations are welcome.)

    As I understand it, in civil rights jurisprudence, there is a precedent that if a law discriminates against a minority that isn’t on the list of protected “suspect classes,” the courts will not strike it down if it passes the “rational basis” test, which is a very low bar.

    The idea is that for a “suspect” class, the default assumption is that discrimination is due to illegitimate animus, and the burden is on defenders of a law to show that there’s actually a good reason for it, rather than just the majority beating up on the minority. The courts are officially very “suspicious” of rationales for discriminating against, e.g., African Americans or Jews.

    Racial and religious minorities are “suspect classes.” Sexual orientations are not.

    All “rational basis” means is that whoever passed the law (a legislature, or “the people” through a referendum) thought there was some good reason for it, based on a legitimate state interest, that wasn’t just hating on the group in question. It doesn’t mean that it’s actually a convincing reason if you understand all the issues, or is the main reason for doing it, or is a “compelling” state interest that clearly outweighs other interests.

    In other words, it’s the “seemed like a good idea at the time” test—if the rational basis test is the standard, the defenders of the law only need to show that there was some way it seemed like a good idea that wasn’t just “animus” toward the group in question.

    For “suspect classes,” the story is very different. To justify discriminating against a suspect class, you basically have to show that it isa pretty good idea—that the law does what its’ supposed to, does it for the reasons it’s supposed to, and there’s a compelling state interest in what it does, of an importance sufficient to justify victimizing the minority to the extent that it does.

    A law that victimizes a protected class is subjected to “strict scrutiny” or “heightened scrutiny,” not just the “rational basis” test.

    The problem here is that sexual orientations should clearly be considered “suspect classes,” and “heightened scrutiny” or “strict scrutiny” should apply. It’s dead obvious that LGBT people have traditionally been the victims of widespread and serious animus, much of it clearly religious or just irrational and hateful, and the courts should be very suspicious of laws that victimize them relative to the straight majority.

    But as long as the “rational basis” test is the one applied, defenders of DOMA etc. can punt on all the biggest and most important issues, and single out any minor reason that isn’t entirely stupid as a “rational basis” for the law, and the courts will accept it—or rather look the other way, and pretend that it’s not the courts’ business to be dealing with all the subtle issues of whether the law is actually a good one overall.

    What needs to happen is that the Supremes acknowledge reality and say that LGBT minorities are so clearly and consistently discriminated against for specifically religious and/or irrational reasons that the “rational basis” test is insufficient—at least heightened scrutiny must always apply, because the courts would be completely stupid not to be very suspicious that anti-LGBT laws were institutionalizing religious and/or irrational animus.

    This mess is largely a consequence of how the courts have traditionally read the Ninth and Fourteenth Amendments. (The Ninth amendment says that the rights enumerated aren’t the only rights you have, and that having some rights “enumerated” should not “disparage” the ones not listed; the Fourteenth has the “equal protection” and “due process” clauses.)

    Some scholars and (and Justices) interpret the 9th and 14th pretty broadly, to mean basically that the government(s) should have to show actually good reason for stopping you or punishing you for doing whatever the hell you want to do. Others interpret them much more narrowly, to protect only those things that most people would generally assume they have the right to do, without them having to be enumerated. (E.g., the right to pick your own nose in the privacy of your own home, but not the right to marry who you want.) And some interpret them very narrowly indeed, e.g., to only protect the groups and rights that would have been assumed to be protected when the 14th was passed in the 19th century.

    IMO at some point, when it’s obvious enough to enough people that of course you should be able to marry who you want, and that should go without saying, the Supremes will likely reinterpret the 9th and 14th amendments as they apply to LGBT people, one way or another—e.g., either admitting that they’re obviously “suspect,” and heightened scrutiny of course applies, or revising the whole rational basis/heightened scrutiny/strict scrutiny thing, which has always been ugly.

  22. 22
    Jason M. Wester

    It has reached critical mass, the dominoes are falling. The only thing the bigots are doing know is making them fall faster. They are useful idiots, the lot.

  23. 23
    leonpeyre

    Considering the Court’s large proportion of members who are Catholics, you might be in for a disappointment.

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