Boehner’s lawyer Clement makes compelling case for gay marriage

Liz Goodwin hones in on an odd part of the legal brief of John Boehner’s lawyer, Paul Clement, in the upcoming Supreme Court cases on the constitutionality of the Defense of Marriage Act (DOMA).

Clement argues that the government has a legitimate interest in promoting marriage, and limiting it to heterosexual couples, because straight people get knocked up when they least expect it, so they need to have marriage available to help them raise their kid.

Huh.

Here’s what Clement is now arguing – it’s so incredibly flawed:

The link between procreation and marriage itself reflects a unique social difficulty with opposite-sex couples that is not present with same-sex couples—namely, the undeniable and distinct tendency of opposite-sex relationships to produce unplanned and unintended pregnancies. Government from time immemorial has had an interest in having such unintended and unplanned offspring raised in a stable structure that improves their chances of success in life and avoids having them become a burden on society Particularly in an earlier era when employment opportunities for women were at best limited, the prospect that unintended children produced by opposite-sex relationships and raised out-of-wedlock would pose a burden on society was a substantial government concern. Thus, the core purpose and defining characteristic of the institution of marriage always has been the creation of a social structure to deal with the inherently procreative nature of the male female relationship. Specifically, the institution of marriage represents society’s and government’s attempt to encourage current and potential mothers and fathers to establish and maintain close, interdependent, and permanent relationships, for the sake of their children, as well as society at large. [emphasis added]  It is no exaggeration to say that the institution of marriage was a direct response to the unique tendency of opposite-sex relationships to produce unplanned and unintended offspring.

Although much has changed over the years, the biological fact that opposite-sex relationships have a unique tendency to produce unplanned and unintended offspring has not.  While medical advances, and the amendment of adoption laws through the democratic process, have made it possible for same-sex couples to raise children, substantial advance planning is required. Only opposite-sex relationships have the tendency to produce children without such advance planning (indeed, especially without advance planning).

Good try, but Clement’s logic is a bit skewed.  There are several problems with this argument:

1. As Clement admits, this was more important when women weren’t permitted to work.  That’s changed now as women are permitted to apply for the same jobs as men, for the most part, and pay is catching up as well (albeit not enough).  So Clement in essence admits that his argument is increasingly outdated and carries less weight today than it did when DOMA was passed.

2. Clement is confused with his underlying point.  Let’s accept Clement’s point, arguendo, that: “Specifically, the institution of marriage represents society’s and government’s attempt to encourage current and potential mothers and fathers to establish and maintain close, interdependent, and permanent relationships, for the sake of their children, as well as society at large.”

Maybe, but why does Clement limit his argument to unintended pregnancies?  Don’t intended pregnancies deserve society’s encouragement for the sake of the children and society at large?  Is marriage intended only to benefit women who get knocked up?  It’s not intended to benefit women and men who intentionally have children, whether in or out of wedlock?  That’s absurd.  Clearly anyone who pushes the “marriage is important for the children” theme thinks that however children arrive on the scene, by unintended or intended pregnancy, by in vitro or by adoption, that the institution of marriage will help that family raise that child better.

Gay parents with baby via Shutterstock

Gay parents with baby via Shutterstock

And why does Clement therefore limit his argument to straight couples?  Gay couples may not have accidental pregnancies, but they certainly intentionally have children, whether by in vitro or adoption.  Clement’s arguments about the importance of marriage to help raise that child well certainly apply just as much to the gay couple with a kid as it does the straight couple with a kid.  Either marriage helps two people raise a kid or it does not.  It’s not entirely clear why this supposed benefit only inures to unintended pregnancies, and if it does go beyond the unintended, then why would it only benefit straight parents and not gay ones?

3. As in point 1 above, Clement is basing his argument on the way society used to be, not the way it is.  Such prejudice was perhaps justifiable, again arguendo, when gays simply couldn’t be parents – once upon a time no one would do in vitro for them or help gay parents adopt. But now they can, and do.  So while once marriage ‘s magical benefit of helping parents raise children might have only inured to straight couples, because gays couldn’t get kids, that is no longer the case today when gays have children too.

Thus, if anything, Paul Clement is making an argument for why gay couples should be permitted to marry, and why the government has as legitimate interest in promoting same-sex marriages, as same-sex couples are increasingly considering having children.  Using Clement’s logic, society should provide an incentive for all parents to stick together and raise the child, and that incentive is marriage.

4. Clement tries to distinguish gay parenting from straight parenting by arguing that gay parents do a lot of “advance planning” before having a kid, so they don’t need marriage like straight parents who get knocked up do.

Really, Paul?  John Boehner’s lawyer is arguing that single parents have no reason to marry so long as they “advance planned” their pregnancy.  Calling Phyllis Schlafly!

First off, the religious right isn’t going to be thrilled about that anti-marriage argument.  Second, what happens when unmarried couples split – who takes care of the child then?  If they’re not married, there’s no alimony (though perhaps there’s palimony, depending on the state).  And if anything, straight couples have less of a need for marriage than gay couples because both of the straight people are the biological parents of the child, so they can still go to court and argue that the other parent should help pay for the upbringing.

With gay parents, at least one per se is not the biological parent, so if the parents are not married, one parent may not even be the legal parent or guardian of the child.  Good luck forcing that other non-parent to cough up child support when the couple splits up after not having been married in the first place.  Marriage at least provides a legal framework for the dissolution of the partnership which afford a better chance at forcing both parents to help with the upbringing of the child should the parents’ relationship dissolve.

So not only is Paul Clement’s argument antiquated, but it also is a good argument in favor of the government having a legitimate interest in promoting same-sex marriages.  Don’t bigots write the darndest things.


Follow me on Twitter: @aravosis | @americablog | @americabloggay | Facebook | Google+ | LinkedIn. John Aravosis is the editor of AMERICAblog, which he founded in 2004. He has a joint law degree (JD) and masters in Foreign Service from Georgetown (1989); and worked in the US Senate, World Bank, Children's Defense Fund, and as a stringer for the Economist. Frequent TV pundit: O'Reilly Factor, Hardball, World News Tonight, Nightline & Reliable Sources. Bio, .

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  • http://oldgaylawyer.blogspot.com/ Eamon O’Connor

    government’s in Dickensian societies gave a rat’s ass about children produced unintentionally and in unplanned fashion by breeding pairs of Homo Sap? Now there’s large nugget of revisionist history or as great Latin scholars would say Cacas Tauri!

  • hyhybt

    As a practical matter, what arguments *could* be raised that haven’t been already and that might help their side?

  • Vegas Dave

    I vote cretins

  • Vegas Dave

    You left out the point of my Grandmother marrying your Grandfather in their seventies. There is no hope of their procreating and producing a child, but the law allows them to marry. If you want to examine the state of today’s holy matrimony, my father is married to his fourth wife, my mother is married for the second time to her third husband while still having a female partner. Life is complicated, we don’t need the law putting barriers up to those who just want to love.

  • Stev84

    Actually no. Supreme Court cases usually aren’t supposed to introduce things that weren’t raised previously.

  • FLL

    Yes, an even more convenient option for a future case: the Supreme Court could just decline to review the case and let the lower court ruling stand.

  • Stev84

    There is another aspect to this: If the Supremes decide to go with heightened scrutiny, they can only consider the arguments that were brought up when the law was passed. Any post-hoc rationalizations have to be dismissed. And while they said something about procreation then it wasn’t really fleshed out.

  • Stev84

    Ok, I should have clarified with “as far as marriage concerns children at all”. That’s what I meant. It’s not the whole point of marriage, but there are laws and parts of laws that are about children and marriage.

  • hyhybt

    He’s not advocating shotgun weddings so much as pretending that heterosexuals wait until marriage to have sex.

  • hyhybt

    Indeed, if anything, his argument would have those accidental gay parents “channeled” into marriage to the opposite-sex other parent, a near surefire recipe for trouble for all involved, including the child.

  • hyhybt

    Not quite. Throw in the expectation that people will, or at least ought to, wait until they’ve made the commitment of marriage before having sex. Then what you would have is all pregnancies, including unplanned ones, occurring within a marriage. Which doesn’t guarantee anything, but it’s a better prospect than the stereotypical knocked up girl in no position to raise *and* support a child right now and who may not even know who the “father” is.

    The main problem, of course, is that even accepting the unlikely premise that that’s the primary purpose of marriage, it doesn’t address how locking out gay couples is beneficial.

  • hyhybt

    The thing is, for the “marriage is about procreation” line to work logically, at minimum it would be necessary to show that that is the *only* purpose marriage can serve and that allowing gay couples to marry would hinder that purpose. Yet they don’t seem to bother with either.

  • hyhybt

    True… and it makes me wonder. “We can’t win, but we’ll slow them down and make them pay dearly for every step” is a very war-like attitude, and many do see this as a war. But it makes me wonder what they’re thinking, because I can think of only two situations that approach makes sense: when losing means your side will be totally obliterated anyway, and when you’re hoping for reinforcements or some other outside event. I wonder which applies in this case.

  • http://adgitadiaries.com/ karmanot

    laughing! :-)

  • hyhybt

    I’m surprised they’ve kept it down to that, if they really have. Litigation is expensive, especially at this level.

  • hyhybt

    In that case, it wouldn’t have to get back to the Supreme Court at all.

  • hyhybt

    The answer there is the Daily Double!

  • Kenster999

    I always like to make the simple, related observation: The (related) argument against gay marriage that “kids need a mother and a father” is actually an argument against gay parenting, not against gay marriage.

  • dcinsider

    Not to mention accidently dropping the test tube full of sperm on your wife’s vagina.

  • dcinsider

    Think about it. Paul Clements is an attorney. He needs to find a legal argument to defend an indefensible position that is based ENTIRELY on bigotry, but he can’t use the best argument, which is “we hate gay people and think they are icky and they should not be allowed to get married or breathe.” So poor Paul Clements is left with coming up with some legally justifiable basis that is not bigoted to defend his position. In the end, this really is his best argument, which only shows just how weak our opponent’s arguments truly are.

  • http://www.rebeccamorn.com/mind BeccaM

    Not even that much, my friend, otherwise we would restrict marriage to parents raising children.

    But we don’t. We allow infertile couples to marry, and those who choose not to have kids, and those past childbearing years. Marriage in modern cultures is a legal and social construct, a binding agreement between two consenting adults who may or may not have offspring, giving both of them certain rights and privileges, as well as mutual responsibilities.

    Clement’s attempt to rest his case on the skewed pinhead of not just childbearing, but unplanned childbearing is as ridiculous and culturally archaic as the ancient practice of declaring a marriage null and void if a bride did not manage to get pregnant within a certain period of time.

  • FLL

    I agree that it probably won’t be a sweeping decision. The biggest victory will probably be a switch to heightened scrutiny, which may very well doom the dozens of state constitutional amendments when any of them are challenged. We may see a sweeping decision mandating nation-wide equality in a new Supreme Court case a few years from now.

  • http://www.facebook.com/people/Donald-Gaudard/1448815167 Donald Gaudard

    At this level, Clement can introduce any argument he wants; he’s not bound my any previous argument.

  • Randy

    From what I remember from Civ Pro, you are correct (I don’t practice law anymore). You can’t raise new arguments on appeal. However, this is SCOTUS and it’s a high profile case, and I’m sure the court will give him wide latitude to make his case. If that argument is the one that will get a majority ruling, then they will go with it. Who’s going to object afterwards? It’s the end of the story, really. So although they should not consider it, I have no doubt that they will.

  • Stev84

    Anthony “Fat Tony” Scalia pointed that out back in Lawrence v Texas. Though he was being sarcastic and will just say “Haha. I was kidding” to get out of that.

  • Stev84

    Yeah, he really doesn’t want another Bowers on his hands. Roberts is certainly very conservative, but he also has to be aware of the reputation of the court. I think that also played a role in him switching sides for Obamacare.

    The real question is how narrow the decision will be. I doubt there will be a sweeping, triumphal decision that strikes down discrimination once and for all. Especially when it comes to Prop 8. But with heightened scrutiny up for discussion they have the chance to set the stage for future cases.

  • Stev84

    And that’s where his whole case falls apart. Legally marriage is certainly not about biological children. It’s about de facto parents and helps the parents who raise a child, regardless of how it came to be. See things like automatically becoming a step-parent when marrying someone with children – no adoption needed. Or the parental presumption, meaning that if a married woman gives birth, the husband is automatically assumed to be the father.

  • Stev84

    He really doesn’t have much of a case to begin with. The reasons given for DOMA’s passing even back then were extremely flimsy.And if the court goes with heightened scrutiny that’s all he can use.

  • bejammin075

    And what are the stats on children presently with gay parents? Some tme ago I think I saw a figure of 1 or 2 million kids in the United States. Don’t they deserve the stability that Clements talks about?

  • bejammin075

    By Clements reasoning, besides not allowing gay marriage, marriage should be banned for all women past menopause, all males and females who are medically infertile, and all heterosexuals who have no intention of having kids.

  • rmthunter

    As I understand it, at this level, he’s not permitted to introduce new arguments. Anything along those lines would have to be in an amicus brief filed by someone else. And frankly, there are no new arguments, so it looks like he’s stuck with the same old losers.

  • rmthunter

    I’ll take “cretins” for $1,000, Alex.

  • rmthunter

    John, you’re being much too kind here. The whole argument is junk. Whenever an argument starts off “since time immemorial,” I know it’s going to be based on a fantasy of the 1950s. Casual bastardy is far more common in history than anyone wants to admit. If the couple were lower-class, they would probably get married, unless one of them already was; if the father was upper-class or noble, he’d either pay the wench off or give her a position in the household, if she didn’t already have one (and you can bet she would not be of equal station), and make provision for the child (who might even be in line for a title). Men haven’t been nearly as irresponsible historically as the right would like us to believe — it seems to be mostly the “Christian” brand of morality (which is a concept they don’t seem to understand very well) that posits denial as the first response to transgression, and the severe stigma of out-of-wedlock birth seems to go hand in hand with the rise of middle-class Christianity. The whole idea that marriage is a necessary response to the possibility of illegitimacy is ludicrous. That has never been its purpose.

  • bpollen

    While you ably describe the commercial part of marriage, I just want to re-emphasize that “traditional marriage” in many cultures was predicated on the idea that women were property, no different than livestock. I would think that marriage has evolved beyond that. Obviously, there are people who don’t believe in evolution…

  • Badgerite

    I’m getting confused here. I thought conservatives were against ‘social engineering’ and the ‘nanny state’. This sounds to me like the ‘nanny state’ writ large. ‘Channeling’ and all.

  • http://www.rebeccamorn.com/mind BeccaM

    I kinda meant that in the ‘infertile couple’ category.

  • http://www.rebeccamorn.com/mind BeccaM

    Good catch.

  • FLL

    One circumstance that I like is that Roberts is very young (for a chief justice) and seems rather vain. He knows that if the Court rules the wrong way, it would only reverse itself in the near future… and Roberts would still be alive and on the Court as the chief justice. He would die of embarrassment if he presided over a bigoted Court ruling, which then got reversed a few years later. I think Roberts would do anything to avoid that kind of public humiliation and tainted legacy.

  • FunMe

    You never know with the Supremes. But with all the briefs, imagine the embarrassment if they rule the wrong way.

  • EdA

    For THIS we taxpayers are wasting $2 million?

    I could write something even stupider for a lot less.

  • FunMe

    lol The latter! :-)

  • Mike_in_the_Tundra

    Don’t forget the late in life heterosexual marriage. If the woman has gone through menopause, there’s really no need for marriage.

  • Bose

    Hey Mark… looks like we were addressing opposite sides of similar coins.

  • tomtallis

    They’re trying to minimize the damage and they’re also stalling for the sake of stalling. It’s all they’ve got.

  • tomtallis

    You left out adopted children, even children adopted by hetero parents.

  • gaylib

    Who says gay people don’t have unintended pregnancies? Given how little we teach young people about sexuality and the stigma that being gay still carries, it might surprise Clement to find out that many young gay people do end up finding themselves as parents before really understanding who they are themselves. Being able to marry someone they love and help them raise their child is every bit as important as straight parents being able to marry. It doesn’t matter if their partner is the other biological parent, but it doesn’t exclude it either. As a result marriage equality reinforces the institution as a means of promoting co-parenting rather than weaken it.

  • FLL

    And this is their lead attorney?! DOMA is toast.

  • Mike Ireland

    1. how will he explain the number of baby-daddies?

    2. is he adventing shotgun weddings?

    i’m confused…

  • nicho

    On a case of this magnitude, the briefs will probably have between little and no effect on the justices. So, Clement is merely playing to the crowd, and the numbskulls on the right won’t see the inconsistencies.

    However, this raises the question of why Barry didn’t take the same opportunity to play to his base instead of backhanding them.

  • nicho

    Just like NOM. They exist solely to suck money out of the pockets of the deluded.

  • Don Chandler

    The lawyer defending prop 8 used a similar “accidental pregnancy” argument. I remember Olsen ripped it to shreds. Cooper used the word, ‘channeling’:

    Charles Cooper, representing Prop 8 supporters, wound up arguing that the core function of marriage is to “channel” heterosexual couples into committed unions to raise the children born of their natural procreation. That alone, he said, was justification for denying same-sex couples the right to marry.

    Olsen had a lot of fun with this “channeling function”… I think he said most people would not appreciate this idea that they had been ‘channeled” i into marriage…

    You just can’t make this stuff up….but when the king says defend the indefensible, by golly, by hook or crook, you just defend the indefensible–in the process, John’s right, Clement will make the case for overturning Doma: marriage, an institution that rewards unplanned parenthood at the expense of planned parenthood.

  • Bose

    The concern for “unintentional” parents rings hollow given that the same can and does happen with same-sex couples.

    They are named as guardians for friends/family in worst-case scenarios. They have been the only available household when another parent in the family is incarcerated or requires long-term treatment. There’s the recently-circulated story about the infant abandoned in the NY subway system for whom the only parents the now 12-y/o has ever known are his gay dads. Many foster parents never intended to adopt, or to care for more than a child or two, but have changed their minds when kids had siblings who would best be served by staying together.

    The numbers may be smaller, but even if miniscule, how many kids is it OK to treat differently solely because marriage is denied to their parents? How many kids is it OK to have at risk of losing the family they know because the “official” parent dies while they are still minors? How many kids is it OK to give more expensive, less effective health coverage than what is offered by the “unofficial” parent’s employer?

    The simple answer is none. One kid with 2 parents committed to marriage, harmed because one is a legal parent and one a legal stranger, is too many. One family with married parents is too many to be harmed by traveling through a hostile state when a crisis hits.

  • Mark_in_MN

    This argument also implies that marriage is there to address a problem that is inherent in opposite-sex couples that same-sex couples do not have, surprise pregnancies. This would seem to suggest an inherent flaw in heterosexual parings that gay and lesbian couples do not have. It further suggests that marriage is not something that would be ideal, but a necessary step that needs to be in place because of this flaw. If not for this flaw, if it wasn’t for the possibility of unintended pregnancies, marriage would have no reason to exist as an institution and, if taken to its logical end, wouldn’t exist at all. Such a strange argument for people fighting tooth and nail to keep a group out of that institution. Who is it, again, who actually values marriage here?

    Further, there is a fundamentally ahistorical argument here masquerading as historical argument. As Becca points out, it ignores actual history of marriage (at least in Western cultures). The argument anachronistically reads back contemporary views as reasons for the institution existing in the first place. Further, it seems to project back into history this contemporary issue of including only opposite-sex couples but excluding same-gender couples as part of the thinking into ages past. The lack of historical conscienceless is somewhat stunning, actually.

  • Jim Olson

    Seriously. Clement makes out no matter what.

  • Hue-Man

    Headline:DOMA: House Republicans Poised To Spend $3 Million On Legal Defense http://www.huffingtonpost.com/2013/01/15/doma-republicans_n_2479666.html

  • OtterQueen

    So…. the only people who should get married are those who unintentionally create a pregnancy? After all, that’s the purpose of marriage, right?

  • Randy

    Agreed that this is all very silly. But I’m not surprised.

    Clement has this reputation as a “brilliant” lawyer, one of the country’s best. When Clement filed his first briefs, I expected some new arguments for supporting DOMA. I was actually disappointed to see the same old crap that has lost them their cases time and time again. So where is the supposed brilliance? It certainly didn’t shine through in those cases.

    Worse, all those same tired arguments would made in the amicus briefs. Imagine paying Clement millions of dollars to make the exact same arguments that everyone is making all for free? Suddenly, people will be asking what the millions actually got them, especially if they lose this case.

    So apparently I wasn’t the only one questioning Clement’s creds. I think there was some back door yelling and screaming that he better come up with a new original argument to justify the taxpayer expense and to justify everyone’s investment in this “brilliant” young attorney.

    And so he came up with this silly argument. You gotta admit — you’ve never seen it before. So it has the mark of originality AND because it’s new, no counterarguements have yet been formulated.

    AT this point, I don’t think Boehner or Clement are looking for a win — they are just looking to minimize the damage as much as possible. They knew that all same old tired arguments would be raised in the amicus briefs, and they are looking at a real possibility that they will lose. Certainly, in the long run they will. So Clement through a Hail Mary pass, and if some or all of the argument sticks (and it certainly will with Scalia and Thomas), then it was worth it. If they lose, as is likely, they can say they tried for a brilllant new argument to complement all the tired old ones, and so they gave it their very best shot.

  • http://www.rebeccamorn.com/mind BeccaM

    Wow… that’s not just skewed logic. There’s no logic to his argument at all. Moreover, it’s full of demonstrably false assertions. To wit: “Thus, the core purpose and defining characteristic of the institution of marriage always has been the creation of a social structure to deal with the inherently procreative nature of the male female relationship.”

    No. First of all, many cultures have defined it differently, but if we limit ourselves to Judeo-Christian history, marriage as an institution was a property arrangement — the sale of a hopefully fertile female to a male — which soon became a means for families to create alliances with each other. Before long, particularly among the ruling aristocracies, marriages were more political than anything else, with the whole procreation thing only relevant in issues of inheritance and the invented concept of ‘legitimate’ children being superior to adopted ones and ‘bastards.’

    His entire point is predicated on the assertion that children born to married heterosexual couples (i.e, “legitimate” kids) are to be valued more highly than:
    - Children from previous hetero marriages, whether through divorce or widowing
    - Children born to single parents, regardless of sexual orientation
    - Any child born to a gay or lesbian parent

    Secondly, Clement is once again implying there is no societal reason or justification to allow infertile heterosexual couples to marry. He ties everything to having babies. And now he says, in essence, the primary purpose for marriage is to give extra societal support for kids — but only those kids in hetero marriages? The guy clearly slept through all of his debate and rhetoric classes in college.

    By the way, we’re not that far from having the IVF know-how for same-sex couples to have children sharing genetic material from both mothers or fathers. Source: http://www.chromosomechronicles.com/2009/07/29/sexual-reproduction-for-same-sex-couples/

  • http://adgitadiaries.com/ karmanot

    Let’s see if I’ve got this figured out. Promiscious straight people should get married because their bastards will become legalized and the Catholics and Baptists will approve, but gay couples in committed relationships who raise children may cause the straight marrigaes to fail. Either god works in mysterious ways or most Republicans are cretins.

  • 2patricius2

    If I am not mistaken, this was an argument made in the first federal trial that overturned Prop 8. Is Clement trying to lose this case? He does well whether he wins or loses. He made a pile of money off the US taxpayers to argue in behalf of Boehner and his cohorts.

  • Tor

    How much has Boehner spent above and beyond his original budget of $500K?? And this is one of their best arguments?? Clement should be embarrassed to say something like that in public.

  • iamlegion

    In a reverse of the usual axiom, I think you’re seeing stupidity where there is actually evil… If you look real closely at Clement’s arguments, they seem like they could be transposed directly into a case that non-hetero couples should not be allowed to raise children…

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