Republicans Defend DOMA with an Old Twist

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.

Clement 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.


  1. Glenn says

    Sadly for my state, the NY Court of Appeals actually bought this “irresponsible heterosexual” argument in Hernandez. It (to me) remains one of the stupidest opinions ever written and one of the most embarrassing stains on a court with a long and storied history (Cardozo, etc.). Fortunately, we overcame in the legislature.

  2. JeffInSF says

    Unfortunately it does make a bit of sense, but they have never explicitly filled in the blank of their argument: “keeping marriage Special”. Their argument only makes sense with this premise — but I can’t tell if they omit this because it’s so obvious to them or because it would underscore the constitutional weakness of the argument.

    They say that government can rationally want (sexually undisciplined) straight people to marry, and so government has created this special legal bundle of rights and responsiblities called marriage. It’s shiny and special and valuable, so reluctant heterosexuals will go for it. Allowing gay couples to marry makes the status less special. It’s the idea of gay people as repulsive — we will diminish the institution by our inherent ickiness, what with our anal sex and all (it’s all they think about). Allowing us in devalues marriage. Keeping us out keeps marriage Special.

    The irony is that for so many years, antigay people fought against any gay rights by calling them “special rights”. And now that’s exactly what they want for themselves: marriage as a special right, only for straight people.

  3. JeffInSF says

    @ari: please do use it! Not sure it’s from her book, but certainly inspired by Martha Nussbaum’s “From Disgust to Humanity: Sexual Orientation & Constitutional Law”. I think she’s exactly right.

  4. Robert in NYC says

    The sick part of all this is, gay republicans, including tea party and civil libertarian scumbags will rally around whoever among the right wing radicals gets the nomination. They’ll bend over backwards to make sure no democrat occupies the White House in 2012 even if it means voting against their self-serving interests. Ron Paul and the majority of republicans support DOMA, remember that.

  5. james says

    Our local county clerk cited the “ick factor” publicly in a newspaper interview when explaining why her office would no longer conduct marriage ceremonies. However, her reference was to opposite gender couples who “didn’t really have the necessary commitment.” So marriage is “icky” for both opposite gender and same gender couples, why are we defending it at all?

  6. jpeckjr says

    The core problem with the procreativity argument is that it reduces marriage to sex only. Marriage then becomes solely about receiving legal, societal, and religious approval to have sex, and a wedding is the ceremony that conveys that approval.

    The only law this argument supports is one that regulates opposite gender sex and procreation: legal only within marriage; criminalized if outside of marriage; prohibit divorce for any reason after children have been born; mandatory divorce if children are not produced within a certain time frame; marriage prohibited to all persons outside of child-bearing years regardless of gender; prohibition of all forms of birth control that might block procreation; mandatory abortion for any pregnancy outside of marriage.

    I would say mandatory adoption, but there wouldn’t be any childless married couples to adopt them, and every child deserves to have both a father and a mother thus ruling out single people adopting, so we’d have to go the abortion route.

    Wow. It would be fun to see someone propose an amendment to DOMA that did all those things.

  7. Dan Cobb says

    This argument would make sense if non-married straight couples were not at risk of accidental pregnancy!! And that is so obviously incorrect! What happens to a child when an unmarried straight couple accidentally gets pregnant!? The same as when a married couple accidentally get pregnant. They either 1)raise the child; abort the fetus; give the baby up for adoption; or break up, and work out/fail to work out custody issues. The whole argument about accidental pregnancy somehow being related to marriage is absurd. The fact is that the human body is as capable of reproducing accidentally with or without the benefit of marriage!

  8. Steve says

    For a lot of Jesus freaks marriage is just an official permission to have sex. So they get married very early to the first possible person – without really considering whether it’s a good long term match. That’s why the divorce rates are higher in religious/conservative states

  9. BobN says

    Hey, let’s just criminalize unplanned pregnancies.

    I realize it makes little sense, but in a world in which the Tea-Party-held House funds a defense of “death taxes”, surely all is possible…

  10. bierce says

    If the federal government’s only interest in sanctioning marriage is to promote a stable environment for possible offspring, then straight couples where one or both partners are sterile should not be allowed to marry. It would be unfair to give them all the benefits of marriage when they, like gays, have no chance of pregnancy.

  11. Trog says

    Like Glenn said, I remember becoming livid when I heard the New York State high court’s rationale against marriage equality. (Was this in 2006?) Basically, they’re saying that straight people are so irresponsible, they need incentives to live together and raise their kids as a family. Gay people, on the other hand, don’t have unplanned pregnancies and are more responsible, so when they have kids, it’s thought out. Therefore, gays don’t need the protections, tax breaks, etc. of marriage.

    I don’t remember most of the media really spelling it out the ruling in simple language like this. If they would have, then I expect even straight people would have been offended.

  12. Keith says

    This was almost word for the word the argument used in California in the Prop H8 case, and which has been resoundly rejected by Federal Judge. In essence, the conservative side argued that the purpose of marriage was to funnel these families in to marriage to protect the children and provide a stable home. But, as the judge and attorney’s for the two couples in the case stated, there is absolutely no requirement on any marriage application or in any marriage vow requiring the production or rearing of children in order to be legally married. It’s a straw argument, and one that is doomed to failure as it would also prevent infertile couples and couples past child-bearing age from getting married.

  13. Bose says

    Gay couples can become parents without having planned or worked hard to make it happen: Nieces/nephews lose their bio parents to tragedy or prison, for example, and the gay aunts or uncles step in as parents. Or, one of the gay spouses is a non-custodial parent, and the custodial parent dies or becomes incapacitated.

    Family law has long made it possible for widowed or divorced parents to not only form second marriages which are fully equal to first marriages, but also to use second-parent adoption to make the non-biological step-parent-child relationships legally equal to biological parent-child ties.

    Clement argues, in effect, that kids and step-kids of gay parents should be not be legally equal to kids and step-kids of opposite-sex parents. Hopefully he’ll be pressed to argue it explicitly.

  14. Frank Cardinalli says

    The continuous and obstinate denial of
    civil liberties and even basic human
    diginty of LGBT people will be the undoing
    of the Republican Party. You can quote me on this.

  15. WHollida says

    I am a gay married American who flew from Florida to California in 2008 to marry my husband. When I returned home, I could not get a driver’s license because of DOMA which allows individual states to have the option of recognizing my marriage. I thought this was the UNITED STATES of America. Seems to me that they don’t care or recognize my marriage at all. Tell me where that is fair. It just isn’t. If I had married a woman there would be no problems at all. I feel like just slapping this a@*hole who is heading this defense of a truly unneeded law that just discriminates against the GAY community.

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