Jonathan Chait reported something today that was so unbelievable that I had to look into it. Conservatives were at the Supreme Court the week before last trying to both get California’s Prop 8 (gay marriage) overturned and force the White House to enforce the Defense of Marriage Act. As Chait rightly points out, its fine for a conservative to just be against gay marriage because he is, “But if you’re a lawyer defending a gay-marriage ban in court, you need an actual legal reason for your position.” And boy oh boy did the conservatives come up with an actual legal reason!
The conservatives are arguing that same-sex couples should not be allowed to marry because they don’t have accidental pregnancies. Chait says, “Gay couples don’t get drunk and wake up pregnant.” Therefore: no marriage for you!
I had a hard time believing this. Was it April first? No. Was there some giveaway in the text—a nod and a wink? No. So I clicked over to the LA Times, Gay Marriage Opponents Take Unusual Tack With Supreme Court. Chait was telling the truth. The article reports that the lawyers are arguing, “Unintended children produced by opposite-sex relationships and raised out-of-wedlock would pose a burden on society.”
There are ways to make the argument sound less ridiculous. But it always comes down to this: we need marriage to make couples behave properly. There will always be responsible couples, of course. We don’t need marriage for them. In fact, if it weren’t for the irresponsible couples, we wouldn’t even have marriage. Thus, there is no point in expanding the definition of marriage because it isn’t necessary.
There are some obvious problems here. What if a absolutist anti-choice lesbian get pregnant via rape? That would be unintended. Her non-married mate could just leave, not wanting the responsibility. I realize that this is not going to happen all that much, but doesn’t the society have an interest in seeing that the child is raised by two parents?
Another issue, of course, is equal protection. (I realize that conservatives only think that equal protection applies to George W. Bush, but still.) Why should responsible heterosexual couples get (for example) tax benefits when responsible homosexual couples do not?
It is all quite silly. But note: the big lawyer behind this is none other than Paul “If the state can force you to buy healthcare why can’t it force you to buy broccoli” Clement. That was no more silly and he managed to get four of the justices to agree. Who knows how he’ll do with this case.