‘Protect Marriage’ and House Republicans: Justifying Discrimination at the Supreme Court

ProtectmarriageAs if defensive about how bigoted they really are, ProtectMarriage's Prop 8 brief states that "[t]he gendered definition of marriage has prevailed in all societies throughout human history not because of anti-gay animus but because marriage is closely connected to society's vital interests in the uniquely procreative nature of opposite-sex relationships. It has always been, and is now, supported by countless people of good faith who harbor no ill will toward gays and lesbians." States allow opposite-sex couples to marry because they have a "vital" interest in "responsibly creating and nurturing the next generation." After all, "an animating purpose of marriage is to increase the likelihood that children will be born and raised in stable and enduring family units by their own mothers and fathers," ProtectMarriage goes on to argue. "Because relationships between persons of the same sex do not have the capacity to produce children, they do not implicate this interest in responsible procreation and childrearing in the same way."

ProtectMarriage would have us believe that opposite-sex procreation makes gay couples sufficiently dissimilar from heterosexual couples to justify the discrimination inherent in Prop 8. In other words, the two types of couples are not similarly situated because only one can accidentally have a child out of wedlock. Therefore, the state should be allowed to encourage heterosexuals to marry because we don't want children to be raised in unstable households.

This is ProtectMarriage's best argument for enshrining discrimination in the California Constitution and yet, it fails to address the very question raised by Hollingsworth v. Perry. Our community's challenge to the constitutionality of Prop 8 does not question society's interest in encouraging people to marry; it challenges the notion that banning gays from marrying is in any way related to or necessary for the government realizing that social interest. The mere fact that gay couples do not reproduce in the same manner as opposite-sex couples neither means that a ban on gays marrying is necessary to encourage heterosexuals to have their children in wedlock nor justifies official discrimination against gays.

ProtectMarriage also argues that "[c]ontroversial social policy issues such as [marriage] are particularly well suited, of course, for the give and take of the democratic process, where individuals may persuade or be persuaded, and where broad public participation, compromise, and incremental change are not only possible but likely." And, in a not-so-subtle reference to the political fallout from cases like Roe v. Wade, the group reminds the Court that "[d]ecisions reached through this process are more likely to be regarded by a free people as legitimate and to be widely accepted than decisions reached in any other manner." 

Of course, the group ignores the fact that its members and its allies like the National Organization for Marriage lie, mislead, and engage in fearmongering whenever the freedom to marry is on the ballot. The brief is blind to the group's undemocratic preference for secrecy and ignorant of the fact that regardless of the popular will, no one, no matter how large a majority, is allowed to enact laws that blatantly violate the U.S. Constitution.

ClementWhereas ProtectMarriage's Prop 8 brief decided to respond to some question other than the one specified by the Court, it is not internally incoherent: it's just a bad, weak argument. The House Republicans' brief in support of DOMA, however, makes no sense (pictured, right, lead attorney Paul Clement). At times, the brief argues for states' rights, echoing ProtectMarriage's view that marriage is best decided in the political sphere at the state level. But, even House Republicans concede that DOMA enacts a federal definition of marriage, something we know is an unprecedented intrusion of federal power into the traditional and exclusive realm of the states. It jumps head first into this morass while not completely understanding DOMA itself!

The brief states that "DOMA reflected Congress' determination that each sovereign should be able to determine for itself how to define marriage for purposes of its own law. DOMA does not override or invalidate any sovereign’s decision to modify the definition of marriage, but it does preserve that prerogative for each sovereign." True, but that's Section 2 of the statute, the one that prevents the definition of marriage in one state from pulling every other state along with it. But, at issue in Windsor v. United States is Section 3, which defines marriage, for federal purposes, as a union between one man and one woman. In that way, DOMA takes aware the sovereign power of the states. It insists that, for the first time, states will not be in control of determining who is married and who is not for federal purposes. DOMA does not enhance state experimentation and states rights; it erodes them.

At the same time, it misunderstands the heightened scrutiny question. If you recall, a central issue of the case is what level of scrutiny to give to state discrimination on the basis of sexual orientation: the higher the hurdle, the harder it will be for the statute to pass constitutional muster. House Republicans believe that only "politically powerless" groups get heightened scrutiny, but that position shows they haven't done their homework. The heightened scrutiny factor is more about whether a group can achieve their goals through the political process alone. Judging by the number of constitutional amendments banning gay marriage and the difficulty in undoing those travesties of justice, it doesn't matter how many officials support gay rights. It's not a numbers game; it's a question of our continued victimization by the tyranny of the majority, the country's history in placing special burdens on us and discriminating against us, and our inability to exercise our equal rights through politics alone.

The weakness of our opponents' briefs in both the Prop 8 case and the DOMA case offers a heartening reminder that the law is on our side. We may still be jittery because rare is the court decision that is a pure exercise of legal reasoning without the dirty imprint of politics and bias. And yet it is hard to imagine Justice Kennedy, and maybe even Chief Justice Roberts, letting themselves be bamboozled into thinking DOMA protects states rights. It is equally hard to imagine even conservative justices falling for the magician's misdirection employed in ProtectMarriage's brief. We have the benefit of the best legal argument, and that's more than half the battle.


Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues.


  1. anonymous says

    Why all this talk about children when 75% – 80% of same-sex couples DON’T HAVE CHILDREN.

  2. Jim Tideman says

    Thanks for the analysis, Ari. I too read the summaries of the briefs and wondered if the GOP put out a weak argument in an effort to convince their base they were fighting, though the majority of the GOP know the fight against equality is coming to a close. By their logic, a heterosexual couple who can’t procreate doesn’t have a right to marry either. Conversely, it could be that’s the only argument they could muster.

  3. RK says

    And yet many gay couples are having children and raising families. Their argument fails logic.

  4. PeteP says

    Does anyone else feel that the GOP’s focus on procreation and the government’s “interest” in promoting reproduction is setting the stage for a future challenge of abortion rights?

  5. ATLJason says

    This was a great overview. I do take exception with this sentence though:

    “It is equally hard to imagine even conservative justices falling for the magician’s misdirection…”

    No it’s not. Scalia and Thomas will NEVER vote for anything to do with gay rights, no matter how reasoned and sound the argument might be.

  6. David in Houston says

    ProtectMarriage’s position is laughable. Gays should be punished by law because they can’t *accidentally* procreate. So because gays are *more* responsible than straight people they should be discriminated against. Laughable.

  7. Frank says

    The idiocy of the “save the children” argument is that there is NOT ONE SINGLE couple gay or straight who would refrain from having a child based on DOMA or any other like-minded law.

  8. Steve says

    The real question is: why all this talk about children, when marriage isn’t a requirement for having children?

  9. Jim Tideman says

    Does the GOP argument imply that hetero couples who go through IVF with donor sperm or eggs (like gays and lesbians), aren’t eligible for marriage either? It’s kind of laughable.

  10. Strepsi says

    @ STEVE: and conversely, having children is not a requirement for marriage!

    A straight couple can loudly proclaim they will never have children – -and then not have them — and their union is recognized at the church, city, State, and Federal level. Debbie Reynolds could get married a fourth time, or Liza Minelli a fifth, and no one would bat an eye although the chances of them conceiving children is ZERO.

    Zero: the per cent of the anti-equality argument that is logically consistent.

  11. says

    “Also gone are explicit references to flimsy and biased “studies” that showed that gays make bad parents.”

    They may be gone from these two briefs, but they are very much front and center in another brief, titled “Social Science Professors,” which lists as its authors 2 economists, one criminologist, and a few others, including Regnerus.


  12. says

    Marriage (in its various forms) throughout history has never been about procreation, accidental or otherwise: It has been about the transfer/protection of title/rank and property. The only reason the Christian Church got involved in “marriage” was as a means to control the nobility. And they only expanded “religious marriage” to commoners centuries later as a way to control them as well.

  13. Jim Tideman says

    Hey ARI!…..I think we know how most of the justices are going to rule, but it may be time to speculate what Scalia and Thomas’s arguments against equality will be. Morals, and the states’ right to determine them? The historical idea of marriage? To me the issue is pretty logical, but to vote against risks aligning not only with the GOP (some) but also NOM and AFA, Brian Fisher and such. Not a mainstream group.

  14. Kyle says

    Scalia’s recent remarks during oral arguments for the Voting Rights Act case suggest that he is ready and willing to ignore fact and reason to enforce his agenda. DOMA is blatantly discriminatory. It exists only to suppress state sovereignty and injure gay married couples. It’s indefensible on any grounds. If Scalia has any legitimacy, he will join the (assured) majority opinion to strike it down.

  15. Lymis says

    And, too, the idea that the government has a huge interest in convincing heterosexuals to marry – and that heterosexuals are sufficiently resistant to the idea that they need incentives and coercion to choose to marry – undercuts the idea that it’s in the government’s interest to ban same-sex couples from marrying.

    It would make far more sense to require or encourage everyone to marry, and to incentivize everyone to marry – that way it will simply never occur to all those irresponsible straight couples that not marrying is even an option.

    Carving out a whole segment of society and continually reinforcing that they can live happy, productive lives, and that it isn’t any sort of discrimination to keep us from marrying, just proves that you CAN be happy and healthy and raise kids without marriage.

    I’m not supporting the idea that all adults should be coerced into marriage, but it certainly follows from THEIR logic, and from real world consequences. The anti-gay people used to try to use the Scandinavian civil unions data to prove that gay marriage damages straight marriage, but what it actually showed was that, given the option of limited civil unions, a lot of straight couples without kids took that option, and only married after they had kids. Banning gay marriage convinced some straight people they didn’t need to marry either.

    If getting married when you grow up is something everyone does, whether they are gay, bi, or straight, it’s easier to convince those irresponsible breeders that they ought to do so as well.

    Logic fail, when your own conclusion doesn’t follow from your own postulated goals.

  16. John says

    Given that 40% of children in America are born out of wedlock, it seems that straight people need no encouragement to reproduce.

  17. BABH says

    “no one, no matter how large a majority, is allowed to enact laws that blatantly violate the U.S. Constitution.”

    DOMA blatantly violates the Constitution, but Prop 8? I mean, *I* think so, but I recognize that it’s a very close call.

  18. Karl says

    I’d be curious to know how much money has been spent and will continue to be spent by the government on this argument.

  19. Continuum says

    Writing intelligent rational legal briefs, both for and against gay marriage, assumes that the five right wingers on the SCOTUS will actually use intelligence and rational thought.

    From their prior rulings and statements, we pretty much already know that the right wingers will rule based upon their own religious and political bias.

    The legal arguments will get short shrift from Scalia, Thomas etal as they implement their own personal bigotry. We are naive fools if we really think that justice will prevail.

  20. sfbob says

    I don’t know how things stand in other states but in California any and all laws which differentiated between children born inside and outside of wedlock were abandoned some thirty years ago. What sense, then, is there in ProtectMarriage’s argument regarding legitimacy? Are they suggesting that the word “bastard” be restored to its status as a legal term rather than merely an insult? Additionally how are they to get around the fact that there’s no guarantee that a child born of married heterosexual couples will grow up in a “stable household?” Even disregarding divorce, there are plenty of unstable marriages around, yet these unions are legally permitted and presumably (by ProtectMarriage’s logic) “encouraged” to produce more offspring.