Too many acronyms! The Bipartisan Legal Advisory Group (BLAG), the attorneys hired by the House to defend the constitutionality of the Defense of Marriage Act (DOMA), is making some rather silly arguments in the various legal challenges that they are engaged in. Take a look at this brief filed in one such case. They’re trying to argue that there is a rational basis for DOMA because it “encourages responsible parenting.” Which leads to arguments like this:
The most straightforward connection between DOMA and childrearing is asimple matter of demographics: The vast majority of children are raised by two opposite-sex parents, or are conceived by heterosexual persons who Congress could rationally desire to encourage to marry. And opposite-sex couples are farmore likely to raise children than are same-sex couples.
Um. Okay. And far more children are raised by white parents than by black parents. Why? Because there are a lot more white people in this country than black people. But that’s only the most obvious logical absurdity here. The more important one is this: Even if Congress could rationally desire to encourage straight couples to get married, what the hell does that have to do with DOMA? Do they really think that straight couples are not going to get married if gay couples are allowed to? This is their argument for a rational basis for the law?
The question is not, as Ms. Windsor suggests, whether DOMA prohibits same-sex couples from obtaining state marriage certificates or raising children, orwhether “denying benefits to married same-sex couples would have any impact on whether straight couples marry or have children.” Instead, it is whether Congress rationally could decide that government interests in responsible childrearing would be furthered more by offering federal marital benefits and duties to opposite-sex couples than by offering them to same-sex couples.
They are basically arguing that it doesn’t matter whether the law actually does further the government’s interest in “responsible childrearing,” but only whether Congress might have mistakenly believed that it does. In other words, they are arguing that the “rational basis” for the law need not be rational at all, as long as policymakers irrationally believed there was such a basis.
Note also the false dichotomy in the last sentence. It isn’t a choice between offering benefits and duties to opposite-sex couples or to same-sex couples; the choice is between offering such benefits and duties only to opposite-sex couples or offering them to both kinds of couples. It really is absurd to offer such blatantly irrational arguments in an attempt to argue that the law has a rational basis. It clearly doesn’t.
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