In early August, 15 states filed a friend of the court brief with the US Supreme Court supporting DOMA. While the counsel of record is the Solicitor General of the State of Indiana, it is obvious that they were in consultation with NOM’s numerous attorneys. The core of their argument against marriage equality is:

As Congress and forty-two States recognize, the different procreative capacities of same-sex and opposite-sex couples support a constitutionally legitimate distinction for defining marriage and affording special benefits to its participants. Traditional marriage and benefit policies further state interests in responsible procreation by encouraging biological parents to remain together, a rationale that cannot extend to same-sex couples.

What this really means is that; We have a religious objection to same-sex marriage and we don’t have a coherent and compelling secular argument.

Of course, that doesn’t stop them from trying. Banning same-sex marriage is a conclusion seeking a logical argument.

Procreation is the sexual activity leading to bearing offspring. Therefore, responsible procreation probably means having the right amount of sex to produce enough children to sustain the planet but not too many to burden our resources.  I wonder what the magic number is. Surely, if the state has an interest in responsible procreation then someone can define it in specific terms. In the alternative, it could mean that only married couples should have unprotected sex. By their logic, the state has no interest in the marriages of couples who cannot, or do not intend to, have children. Yet, the state would have an interest in regulating recreational intercourse. Again, their god has an interest in who has sex, how often they do it and for what purpose but not the state. Establishment Clause? Anyone?

Furthermore, if the intent of marriage is to encourage “biological parents to remain together” it doesn’t seem to be working very well. What about second, third or fourth marriages that result in step parents? We have many     many     of those. What is the intent of those marriages? Needless to say, there are many marriages of people who are not biological parents and never will be.

They are right about one thing; If you somehow accept their rationale, then it does not extend to same-sex couples for it is the outcome that creates the rationale in the first place. It is the exact opposite of critical thinking.

Maybe it’s the idea that, if gay people marry, then heterosexual couples will have sex too often or not often enough. Or maybe, if gay people marry it will cause straight marriages to end in divorce. Or maybe, if gay people marry we’ll drink more scotch and less bourbon. I don’t know because none of this makes a whit of sense.

The state does have an interest in marriage. It determines who has the privileges and responsibilities of child rearing (in contrast to child spawning) should one partner in the marriage die or leave the marriage. The state’s interests also include the orderly management of assets, liabilities and the estate should one partner in the marriage die or leave the marriage. Social Security also creates a state interest in marriage as marriage defines a legal heir and successor.  All of the state’s real interests in marriage apply equally to same-sex and opposite sex couples. That’s just not the rationale that the authors of this legal brief are looking for.

Even Justice Scalia would have to dismiss such intellectually dishonest pablum.

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By David Cary Hart

Retired CEO. Formerly a W.E. Deming-trained quality-management consultant. Now just a cranky Jewish queer. Gay cis. He/Him/His.