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.


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 | Instagram | Google+ | LinkedIn. John Aravosis is the Executive Editor of AMERICAblog, which he founded in 2004. He has a joint law degree (JD) and masters in Foreign Service from Georgetown; and has worked in the US Senate, World Bank, Children's Defense Fund, the United Nations Development Programme, and as a stringer for the Economist. He is a frequent TV pundit, having appeared on the O'Reilly Factor, Hardball, World News Tonight, Nightline, AM Joy & Reliable Sources, among others. John lives in Washington, DC. .

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