The argument is that marriage is a remedy to a unique ill that accompanies heterosexual sex rather than gay sex: unplanned children. From an LA Times article: "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.
Whatever its merits as law, it's cool to see conservatives arguing for the superiority of gay sex.
"It was rational for Congress to draw the line where it did," Clement said, "because the institution of marriage arose in large measure in response to the unique social difficulty that opposite-sex couples, but not same-sex couples, posed."
This is a reasonably clever argument overall, but as an avowed statement of historical fact, this seems fairly clearly indefensible.
I had a dream last night that I'd been pregnant since August and just hadn't realized it, but then realized (in the dream) why I didn't actually need to worry, at which point I suddenly got worried (in the dream) that actually Lee was pregnant and neither of us had known. I don't even have the melatonin excuse, as I wasn't taking anything harder than Sleepytime tea.
From the comments:
It's a v weird argument. The idea seems to be that we can trust same sex couples to plan a family appropriately, so they don't need this marriage thing.
Whereas hetero couples may sprog at any moment, causing the downfall of society, cats and dogs living together and children out of wedlock. So they need marriage to corral them into stability for the good of the nation.
Marriage: a necessary evil for the heteros. Gay people are too good for it, and it would only sully them, which we're too kind hearted to wish on them.
It's a novel, creative and thoroughly adorable line of argument. This will be fun.
The sacred right of straight people to bind themselves sexually by government sanction shall not be infringed upon by gay people doing it too.
For the argument in 1 to hold up, wouldn't we also have to make sex between unmarried heterosexuals illegal? Or maybe just make marriage of heterosexuals obligatory in the event of conception?
Isn't that what shotgun weddings are all about? See what happens when you let families fall apart? A tragic decline in forced marriages.
Not even mandatory, but automatic. You find yourself knocked up, you're married. There may need to be DNA tests to figure out who you're married to, but you're married.
This will increase family stability and be a very good thing.
6: The way it's supposed to work is that all fathers of daughters are supposed to own guns.
6: I take the gist of the argument to be that that would be in some sense normatively ideal, but that we can't mandate that for constitutional reasons (and probably wouldn't want to mandate it anyway, since it would be too significant an infringement on liberty). But what we CAN do instead is offer them a package of tax breaks and other incentives, as an inducement to encourage them towards marriage.
The General Assembly in Virginia is currently attempting to remove the law forbiding Lewd cohabitation. (Unmarried heterosexuals living together.)
I get that the argument is as beamish presents it, but I still don't understand it. It may indeed make sense for there to be an institution that helps along those who might unintentionally procreate, and if that institution brought unique benefits pertaining to the raising of unintentional children, then it might make sense to exclude people who can't have children unintentionally from it. (Assuming they could make use of the benefits anyway—that they didn't come along only after having a child unintentionally, for instance.)
But even if it would be reasonable for California to maintain a unique institution to help address these unique challenges, it seems fairly clear to me that California does not, currently, maintain any such unique institution and that marriage, in particular, is not such an institution.
Moreove, to be consistent this argument would, as so many arguments about procreation would, have to exclude infertile women, women who'd had tubal ligations, impotent men, men who'd had vasectomies, castrated men, and menopausal women from marriage, since they can't inadvertently procreate.
It doesn't seem necessary to make heterosexual sex outside of wedlock illegal, since those unmarried sex-havers would simply not be availing themselves of something the state had made available to them.
Not even mandatory, but automatic. You find yourself knocked up, you're married. There may need to be DNA tests to figure out who you're married to, but you're married.
This will increase family stability and be a very good thing.
It would also increase polygamy/polyamory.
This will increase family stability and be a very good thing.
It may also increase incidence of polygamy.
Instead of "marriage" we could call it "free prenatal care" and it could be available to any person who finds themselves pregnant.
Isn't that what shotgun weddings are all about? See what happens when you let families fall apart? A tragic decline in forced marriages.
So what you're saying is that when Obama takes away our guns, heterosexual kids will start not getting married just like the gays? The second amendment protects traditional marriage as enforced by a well-organized militia?
1, 6-8: Haven't read the LA Times article, but I find myself wondering if folks have forgotten that there is another approach that one can take to an unplanned pregnancy.
Obama's just defending traditional shotgun marriages against newfangled assault rifle marriages.
I'd have a lot more time for these sorts (anything based on "It's good for the children") of arguments if the benefits in law accrued to those who actually supported children, and not otherwise.
19: Well sure, but I think heterosexual and gay couples alike have to plan extensively for adoptions.
I don't have a very high opinion of the current US Supreme Court, but I would wager that this argument would be rejected 9-0 by the Court.
Someone recently said "Heterosexuals and homosexuals both remain free to marry someone of the opposite sex."
25: While not sleeping under a bridge.
This argument totally explains why the state does not care whether potential adoptive parents are married or not.
24: Has there ever been a right-wing argument so dumb that Scalia wouldn't support it?
Wasn't this the argument that the NY courts accepted in upholding a gay marriage ban?
31: Pretty much, yes. Not the unplanned angle (I don't think), but the child-producing and -rearing angle, definitely. And under rational basis review, the NY court figured it only had to conclude that the legislature could have found that the rationale was more compelling for opposite-sex couples than for same-sex couples, not that the rationale only applied to opposite-sex couples.
Oh wow. This guy I went to UT with who used to go around giving a rather treacly lecture on why gay is a-ok is mentioned in the Times in a list with Caitlin Flanagan ("a feminism skeptic") as people who are forming some kind of TL;DR coalition to strengthen marriage. All marriage, I guess.
So this argument also means that the state has a rational interest in mandating the provision of birth control- how many people signing on to the anti-gay marriage argument are simultaneously party to lawsuits to overturn the birth control mandate of Obamacare?
33We propose a new conversation that brings together gays and lesbians who want to strengthen marriage with straight people who want to do the same. The new conversation does not presuppose or require agreement on gay marriage, but it does ask a new question. The current question is, Should gays marry? The new question is, Who among us, gay or straight, wants to strengthen marriage?
Oy!
What if marriage gets too strong and then breaks out of its foot-thick steel cell and rampages across the city, forever tainting the lives and careers of the scientists who thought they could contain it?
34: the people suing over the birth control mandate are arguing that it interferes with a fundamental right (free exercise); and if that's right (it's not), then you're no longer in the world of rational basis review. Which you shouldn't be w/r/t same-sex marriage, either, but that's kind of what these cases will turn on (implicitly if not explicitly).
36: Damnit, where's Emerson? Will, your country needs you!
36: They'd be forced to invent mecha-marriage and send it into battle?
38- So in other words, for conservatives to uphold DOMA/Prop 8 but overturn Obamacare, they'd have to thread a needle so thin that it involves quantum mechanical forces.
So ~80% chance of the desired conservative outcome.
41: Not really. Free exercise of religion is clearly established as a fundamental right (and so laws that interfere with it are unquestionably subject to more than "rational basis" scrutiny), but classifications on the basis of sexual orientation are not (expressly) subject to higher scrutiny under current equal protection precedent. That is, the birth-control objectors just have to establish interference to trigger heightened scrutiny,* while same-sex marriage proponents have to first establish that heightened scrutiny has any role at all (which is obviously correct but also heavier lifting).**
*Which is not to say they automatically win if they cross that threshold. Whereas if we get heightened scrutiny in the same-sex marriage context, that should be the end of the story, given how ridiculous even the rational basis defense is.
**I'm eliding some stuff important stuff here, chiefly that the Court has in the past purported to apply rational basis review in a related context while clearly applying something less deferential than that as a practical matter. And surely the other side will advocate something like that here, at least as one way of reaching the right result, in the hope that Kennedy will once again apply something that smells like heightened scrutiny even if he'd balk at explicitly creating a new equal protection suspect classification. I think there's a reasonably good chance of things going that way. But it would involve a certain amount of handwaving.
30
24: Has there ever been a right-wing argument so dumb that Scalia wouldn't support it?
That flag burning wasn't protected political speech?
We propose a new conversation that brings together gays and lesbians who want to strengthen marriage with straight people who want to do the same.
Is the compromise they are aiming for "Marriage for all, divorce for none"?
31,32 Then why are people past child-bearing and child-rearing age permitted to marry?
45: It used to be considered both improper and inconvenient to check that sort of thing. Now it's too late to change the tradition, so old folks are grandfathered in.
so old folks are grandfathered in grandmothers.
45: Well, look, this is all obviously very stupid, but if you want the lawyerly answer, it's because "rational basis" review doesn't demand much at all, certainly not that the rule is a close fit for the stated goal. And as a general matter that's absolutely right: it would be insane for courts to be policing whether a law really makes sense in light of the legislature's goals, except when important rights are at stake. Which of course they are here, so it's ridiculous that rational basis review would be applied. And that's why the argument being mocked here can at the same time be profoundly stupid but also "correct" (given the wrong but sort-of-established premise that we should be in the world of rational basis review).
Inheritance disputes seem important to me. For example, the children of wealthy old men (maybe just those who have undergone agrresive treatment for prostate cancer) could argue that there's theis whole class of Anna Nicole Smith invalid marriages.