I wrote the other day about the profoundly silly argument used by the Bipartisan Legal Advisory Group in their briefs in the marriage equality cases being heard by the Supreme Court. Their argument is that we have to ban same-sex marriage because only straight marriages can produce accidental pregnancies. Jonathan Chait spots one main problem with the argument:
So the problem here is that you can’t discriminate against people without good cause. You need some distinction to justify it. The traditional distinction that straight people raise kids doesn’t work, since gay couples can do that too. So Clement fell back on arguing that only straight couples have unplanned children. Gay couples don’t get drunk and wake up pregnant. It is, to say the least, ironic that after years of using alleged gay social irresponsibility as a rationale for discrimination against gays, heterosexual irresponsibility is now a rationale for discrimination against gays.
It does make sense in the limited way of thinking that, okay, you might want marriage as a way to force the two straight people facing a sudden pregnancy to get married and raise the baby together. But this is a reason to deny marriage to gays because … there’s only so much marriage to go around? The gays will sign up all the best caterers? Clement has an argument for straight marriage, but how it translates to preventing gay marriage, I can’t fathom.
Marriage is good and fundamental to society.
Therefore we should prevent gay people from getting married.
That missing second premise is kind of important; it’s also never stated.
My former colleague Dave Weigel hammers this argument as well:
But one of the ways gay couples find children to raise is by adopting them — adopting children who are the unintended product of opposite-sex relationships. In all seriousness, did no one proofread this?
He actually suggests that Paul Clement, the head of the BLAG team of lawyers, is actually throwing the marriage cases by making such bad arguments.