Wacky Argument Against Same-Sex Marriage

Paul ClementJonathan 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.

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About Frank Moraes

Frank Moraes is a freelance writer and editor online and in print. He is educated as a scientist with a PhD in Atmospheric Physics. He has worked in climate science, remote sensing, throughout the computer industry, and as a college physics instructor. Find out more at About Frank Moraes.

0 thoughts on “Wacky Argument Against Same-Sex Marriage

  1. Somewhere in my apartment, under stacks of other things, is a copy of "Dishonorable Passions: Sodomy Laws In America" by William Eskridge. Eskridge was the legal history expert for the team that got the Court to overturn state sodomy laws, and because of that, sometimes the book gets a little bogged down in legalese. Good historical information, though.

    The Puritans punished every kind of sex they disliked, but aside from Plymouth there really weren’t a lot of anti-gay laws up until the late 19th century. "Sodomy," in legal terms, only really applied to sexual assault, and then only to sex crimes which could not get the victim pregnant. (Sexual assault which could result in pregnancy was a more harshly punished offense, logically enough.)

    It was only with the rise of Comstock-ism and its war on pretty much all sexuality (including, of course, sex manuals and contraception for married couples) that America started to see the rise of anti-gay laws.

    For quite some time attempts to get anti-gay laws off the books were defeated via the "no promo homo" (author’s phrasing) logic; that even if such laws were in, effect, unenforceable behind closed doors, they sent a message as to what society valued. Eventually legal teams and careful studies managed to prove that anti-gay laws did in fact violate individual privacy. Corrupt cops would harass individuals for sex and then arrest them afterwards (cheaper than paying for it), and these actions weren’t relegated to rest area bathrooms and gay bars but sometimes involved home invasions.

    This particular legal approach Clement et. al. are currently using is batshit in so many ways, I’d have a hard time believing any self-respecting judge (which excludes Scalia/Thomas by default) could buy it. Should unintentional pregnancies require marriage, forced by law? Should marriage candidates be required to take fertility tests?

    I know very little about legal precedents, but if I were the devil and working for the anti-marriage side, I’d look and see if community standards could carry any weight. Most different states have different laws on, say, how and where erotica can be sold.

    Or, politically; if I were the Repubs, I’d get solidly behind civil unions — and nothing else. That would defuse a lot of anti-Repub anger and split the gay-rights community. Wealthy same-sex couples in civil unions might then be more inclined to support Repub anti-tax positions. It’s a mark of how torn the party is between its fundamentalist and wealthy bases that they haven’t already made that move — not even at any statewide level, as far as I know.

  2. @JMF – I’m not sure how logical that was. I suspect that the reason vaginal rape was punished more harshly is the historic assumption that women were property. Thus, taking away virginity destroyed extra value. I don’t think the male judges cared if women had to carry a rapist’s child. Do you know? In the absence of information that seems the most logical assumption.

    That was really interesting. So the reason we had anti-gay laws is the same reason we [i]have[/i] anti-drug laws? I’ve been arguing that for quite some time.

    I think your "advice" to Republicans is solid. This is a case where being an extremist hurts. If the Republicans would have allowed civil unions, same sex marriage would not have made so much progress.

    However, I don’t think it would be smart for conservatives to argue for community standards. All that would do is kick the can down the road. As it is, more than half the people are in favor of same-sex marriage. It is only going to get more beneficial to the gay rights movement.

    In other words: they’re screwed. (Maybe even sodomized.)

  3. You’re probably right — marriage was like a real estate deal, and virginity upped the closing price. I guess I assumed that old-timey communities had a little more compassion for a "virtuous" single mother, but they probably didn’t (even if it wasn’t her "fault.")

    Religious literature is rife with specific standards about sexual assault. Apparently, religious men constantly fear that their wimminfolk are lusting for less controlling dicks (as a noun and adjective.)

    If I remember by Bible correctly (and I usually do), Jewish law proscribed stoning for women assaulted in populated areas, and gave them a pass if the assault happened away from town where nobody could hear cries for help. (If they were abused in the town, they must have wanted it.)

    Besides being insanely sexist, this is backwards from a strictly "the 14-year-old I purchased is my property" standpoint. Most sexual assault happens at the hands of family members, right in the place where one lives, and any gal going out with an attractive guy to the quiet olive grove probably has a good idea what’s going to go down.

    Yet another example on how the Bible is pretty much wrong about everything, except (as Vidal noted) the inadvisability of eating shellfish in the Jerusalem area.

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