The Bipartisan Legal Advisory Group, the attorneys hired by the House of Representatives to defend the Defense of Marriage Act after the Obama DOJ decided not to, is offering up some unusual arguments to defend the law. In a brief (PDF) filed with the Supreme Court, they argue:
Congress recognized the basic biological fact that only a man and a woman can beget a child together without advance planning, which means that opposite-sex couples have a unique tendency to produce unplanned and unintended offspring. Congress sought to encourage the raising of such children by both their biological parents in a stable family structure.
Okay. So why didn’t Congress prohibit women from having children with donated sperm and close down all the sperm banks? After all, such arrangements guarantee that the resulting child will not be raised by the biological parents. And surrogate parenting as well. And adoption, for that matter. All of those things directly cause the very problem they claim to want to prevent yet all of them are legal, while BLAG argues that it’s entirely reasonable for Congress to refuse to recognize same-sex marriages that are entirely legal in the states that they are performed in — and not on the grounds that same-sex marriage will actually cause children not to be raise by their biological parents but because Congress thinks heterosexual marriages are a good thing (duh).
They return to this language again and again:
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. 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.
So why does this not apply to planned and intended children? Why the focus on unplanned and unintended children? Do planned and intended children not benefit from their parents maintaining close, interdependent and permanent relationships? Do the children of gay parents — and there are hundreds of thousands of them — magically not need the protection that marriage provides?
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). Thus, the traditional definition of marriage remains society’s rational response to this unique tendency of opposite-sex relationships.
Seriously, they think this is a good argument? It would seem to me that those who go through the very difficult and cumbersome process of having kids through in vitro fertilization or adoption are probably likely to be more committed and devoted parents than those who have kids, to quote Jamie Kilstein, “because the condom broke.” Planned and intended children are probably considerably better off than unplanned children because their parents could make sure they were prepared to be parents before taking the plunge.
So why this obsession with unplanned children? Because it’s a pretext, a way of drawing an irrelevant distinction between straight marriages and gay marriages and then pretending that it’s relevant.