In a recent amicus brief filed with the U.S. Supreme Court, the Obama administration attacked a legal argument that some see as key to the movement against gay marriage: that gay couples cannot accidentally become pregnant and thus do not require access to marriage. The argument is central to two major gay marriage cases before the nation's highest court: Hollingsworth v. Perry about California's gay marriage ban and U.S. v. Windsor which is challenging DOMA.
The attorney representing those supporting DOMA (the federal Defense of Marriage Act) wrote that opposite-sex couples have a unique tendency to produce unintended offspring. The attorney, Paul Clement, went on to say that because same-sex couples cannot naturally produce children, the government has a legitimate interest in solely recognizing those marriages between men and women because this can encourage them to form stable family units to raise children. Those opposed to gay marriage also argue that by allowing gay couples to marry it may discourage other straight couples from marrying, thus harming a legitimate government interest in encourage procreation.
The Obama administration said it was ridiculous to pretend that marriage is merely society's way of dealing with unintended pregnancies. The brief also said that gay marriage would neither help nor hurt straight couples who might want to marry.
The argument that unintended pregnancies provided a basis for denying gay couples the right to marriage got its start in a dissenting opinion in the 2003 Massachusetts Supreme Court case that ultimately legalized same-sex marriage in that state. The dissenting justice, Robert Cordry, argued that the government has a stake in defining marriage as between only men and women because this exclusive benefit of a legally acknowledged marriage helps push straight couples into marrying and thus forming stable families which help children and society as a whole. Cordry said that the institution of marriage sends a message to men that they must help raise their children and the state has an interest in encouraging it so that fewer children are raised by only one parent. The state has no such responsibility to encourage same-sex couples to marry because they cannot have children unintentionally.
Since the argument was first introduced it has been cited numerous times by opponents to same-sex marriage. One flaw in the logic is that it does not explain what could then stop governments from banning infertile people or elderly couples from marrying given that they too cannot unintentionally become pregnant. Many expect Supreme Court justices to be skeptical about the argument when the case is up for oral arguments later this month.
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