Unplanned and unintended consequences of proof-reading your briefs

Paul D. Clement, the lawyer before the Supreme Court who is defending the DOMA, made a very interesting argument as to why same-sex marriage should not have the same protections and rights as “traditional” marriage: apparently the state has an interest in supporting the “unplanned and unintended offspring” of different-sex couples, and that’s why their parents need the additional rights, protections, benefits and tax breaks afforded by the Federal definition of marriage.  Same-sex couples, on the other hand, have to plan ahead if they want offspring, so they can be better prepared, which means they don’t need government support.

It’s the first time I’ve EVER heard anyone make the case that same-sex marriage shouldn’t be allowed because gay people are MORE responsible, prepared parents. And the first time I’ve heard a Republican-backed legal argument FOR a government-provided safety net for the unprepared and irresponsible. Following that logic, the government has a greater interest in supporting Catholic families over non-Catholic ones, and a vested interest in giving money to people who don’t understand how birth control works.

It’s SUCH a weird argument to make, it almost boggles the mind. If the interest of the state is only in supporting unprepared parents, then marriage is meaningless and irrelevant and deserves no rights or protections at all until an “oops! baby” is born to the couple. And NO rights or protections should be made available to couples who adopt either, since they also have the opportunity to plan ahead.  But here’s the most bizarre part: many of the children that couples (gay or straight) adopt  come from “unplanned and unintended” pregnancies.  And since the brief quotes Baker v. Nelson (1972) by saying there is a legitimate government interest  in providing support for an institution designed to facilitate the raising of such offspring, the brief simply undermines itself on that point: if the government interest is there, then it exists for support of parents of unplanned and unintended babies AS WELL AS those who adopt them, gay or straight.

But he’s making the argument that straight people are a burden on the state, and therefore deserve more government money. 

Sure, I get where he’s going from a legal perspective: he’s trying to differentiate between the classes of people involved on either side, since you can only make an argument of allowable differences in treatment (AKA “discrimination”) if there are, indeed, significant differences between the classes. But this is pretty thin soup on which to base the case.  Granted, it’s not the ONLY argument made in the 60-page brief: it also makes the case that providing Federal benefits to same-sex partners would be an unforeseen and unbudgeted expense.  In essence this means that your rights and protections depend on whether we have chosen to pay for them or not, and if we have it in the budget this year.  It’s amusing that this is the case being made by a legal group paid by Congress (not the Executive branch through the DoJ, who has been told not to defend the DOMA), happily billing taxpayers up to $3 million to do so.

But it’s obviously the “unplanned and unintended” argument that’s getting the most attention, and for a good reason: it’s the weirdest one of the lot.

Clement spends a lot of time describing how the Federal government has the right to define marriage for the purposes of treatment, and to take into consideration how the states have defined it without being constrained by those definitions, but I’m not sure anyone is arguing against that.  And a lot of time making a “uniformity” argument: that the government has the obligation to treat everyone as equally as possible (which is true), but that invalidating DOMA and redefining marriage would inevitably lead to some couples getting one set of Federal rights in one state that recognizes same-sex couples, but no rights in a difference state that doesn’t recognize them.  How he reaches that conclusion is not explored, since the Federal government can easily make the definition of marriage at the Federal level dependent on whether the couple is considered “married” in any state in the Union, and treat that couple the same for the purposes of Federal benefits and protections regardless of the state law.

And of course, the “it’s for the CHILDREN” argument.  As if the only reason to support marriage is to encourage the baby-making and biological parents-only family.  As if all couples get married for the sole purpose of procreation. As if there are no childless-by-choice married couples, no infertile couples, no couples who choose to adopt children (from unplanned and unintended pregnancies) rather than bear their own, no couples who raise children from their spouses’ previous relationships as if they were their own.

Shouldn’t the fact that there are people who can’t have children who want to get married invalidate that argument?

This is apparently the best that up to $3 million dollars of your tax money can buy.


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