ThinkProgress called the brief "homophobic," identifying five specific homophobic arguments: (1) gays have not faced discrimination, (2) sexual orientation is a choice, (3) gays have political power, (4) same-sex couples make bad parents, and (5) Congress must protect the traditional institution of marriage. To be fair, the Mr. Clement only really makes the last point explicitly and we should be honest about that.
Mr. Clement does not say gays have not faced discrimination (as ThinkProgress put in bold), but rather notes that regardless of the historical record, a history of discrimination is only one factor courts used to determined whether heightened scrutiny should be used. And, of course, he's right about that. He questions the court's reliance on one side of the social science research about choice and parenting, but here he's on shaky footing: the studies on his side are biased, politically motivated and unaccepted in the psychological community, so the court was right to rely on the better ones. He then makes the reasonable point that President Obama's position on DOMA indicates increasing political power of the LGBT community.
But, I am not here to defend Mr. Clement's brief. The document is full of arguments that fail the laugh test. Still, he deserves credit for resurrecting a slight twist on an old anti-gay argument. Unfortunately for him, he loses points for making a ridiculous substantive point:
Congress rationally could decide to base eligibility for federal marital benefits on the basic biological differences between the two classes. Opposite-sex spouses generally are capable of procreating with each other; same-sex couples are not. 150 Cong. Rec. S7913 (daily ed. July 12, 2004) (Sen. Bunning) (“Only a man and a woman have the ability to create children. It is the law of nature.”). Indeed, most sexually-active opposite-sex relationships have an inherent ability to produce children whether or not the spouses are seeking to do so at any given time. And the fact that opposite-sex relationships produce unplanned and unintended pregnancies is at the heart of society’s traditional interest in promoting the institution of marriage and providing incentives for these unplanned offspring to be raised in the context of a traditional family unit. Whatever else is true of the procreative potential of same-sex couples, the phenomena of unplanned and unintended pregnancies is limited to opposite-sex couples. Congress rationally could have concluded that a special legal category was necessary to recognize the special concerns that face a couple who must take account of this inherent possibility of their relationship, and to support and incentivize such relationships despite the increased responsibility they place upon the spouses.
Recall that Mr. Clement is arguing that the proper test for DOMA's constitutionality is rational basis, i.e., there must only be some rational connection between a legitimate state interest and the statute. And, Congress need not have stated a valid reason at the time it passed DOMA; there must only be a rational basis, somewhere out there in the ether.
Mr. Clement argues that Congress could have reasonably concluded that it had to incentivize opposite-sex marriage because opposite-sex couples have to deal with the possibility of unplanned pregnancies and Congress has an interest in making sure those children do not grow up in single-parent households. The dissenters in Massachusetts's same-sex marriage decision, Goodridge v. Department of Public Health (2003), made a similar point: "marriage is an institution designed to create a safe social and legal space for accidental heterosexual reproduction, a space that is not necessary for same-sex couples who, by definition, cannot accidentally reproduce."
Unfortunately, that argument makes less than no sense. Even assuming that Congress has an interest in incentivizing opposite-sex marriages to avoid single parents raising unplanned miracles, it is not clear how denying federal marriage recognition to gays incentivizes opposite sex couples to get married. Banning same-sex marriages would not even do that, and DOMA does less than that! Nor is it clear how exempting Ms. Windsor from the inheritance tax would provide a disincentive for opposite sex couples with unplanned pregnancies to get married. What one thing has to do with the other is beyond me and beyond reason.
Even if there were a connection, the argument is historically inaccurate. Many courts — before In re Marriage Cases in California — have held that marriage allows states to send a message to potentially irresponsible procreators that marriage should be their goal. But, as Kerry Abrams of the University of Virginia School of Law has argued, marriage has sometimes been used to channel male heterosexuality into reproduction, but to argue that this goal is the sine qua non of marriage is to vastly oversimplify its history in both law and culture.
Mr. Clement may have decided to resurrect this accidental procreation idea because he is adopting a kitchen sink approach. Throwing whatever they can at the wall and hoping for something to stick is the only strategy traditionalists have left. DOMA is about to die, and Mr. Clement's desperation is only the latest indication.
Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.
Follow Ari on Twitter at @ariezrawaldman.