Paul Clement’s New Pro-DOMA Argument Is The Last Thing You’d Expect

Paul Clement, the lawyer that the Republicans in the House of Representatives hired to continue defending DOMA even after one of its sections was declared unconstitutional by the Department of Justice, has never been particularly creative. The brief that he and John Boehner filed back in 2011 on the Edie Windsor case is a good example of what he’s brought to the DOMA issue so far. It contains arguments everyone has already heard: anti-gay discrimination isn’t important enough to warrant heightened judicial scrutiny; gays make bad parents; sexual orientation isn’t fixed  or inherent and is therefore invalid; homophobia just isn’t really that big a deal anymore because I mean, have you seen Will and Grace? In short, Clement hasn’t been able to bring anything new to the table as a lawyer representing the anti-gay side, and has mostly relied on the same old arguments that have failed to stand up to a judge or a test of basic logic. That is, until now.

This week, Clement stated that marriage needs to be legally limited to the union between one man and one woman because gays are in fact more responsible parents than straights, who can “produce unplanned and unintended offspring.” In fact, he went so far as to describe unmarried straight couples as a “very real threat” to American society. Charles Cooper, who you may remember fondly from the Prop 8 trials, added that “It is plainly reasonable for California to maintain a unique institution [referring to marriage] to address the unique challenges posed by the unique procreative potential of sexual relationships between men and women.”

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In a shocking turn of events, there’s nothing homophobic about the anti-equality side’s argument, if only because it’s an argument that doesn’t address or include gay people at all. While not homophobic, the argument is totally speculative; it doesn’t rely on any research or data that confirms its fears about unmarried straight couples are in fact harmful to anyone. This might be in part because Clement himself, in the same 2011 brief, once critiqued his opponent’s claim that gay parents are just as good as straight parents by writing “Plaintiff’s claim of a clear expert consensus is overstated. Indeed, the evidence relied upon by Plaintiff’s own expert demonstrates that studies comparing gay or lesbian parents to heterosexual parents have serious flaws.” So Clement’s bizarre critique of straight parents (and reminder that straight people could accidentally become parents at any moment!) can’t be based on actual studies, and has to instead be based on the unpredictable possibilities of heterosexual sex. In contrast, the fact that same-sex couples can’t have procreative sex is somehow no longer a mark that we’re marked unfit for families by God, but a marker of being prudent and responsible; we need “substantial advance planning” to have families.

There are plenty of flaws with this plan, most notably that while (within its own system of logic) Clement’s argument calls for straight marriage, it fails to explain why marriage needs to then be limited to straight people. Even if straight people do “need” marriage, it doesn’t follow that gay people who want marriage should then be denied it. It also relies upon the assumption that children are necessarily better off with married parents, so much so that people who could potentially have children should get married as a safeguard against it, as well as ignoring the children that are born of sexual contact that doesn’t occur within a relationship. Perhaps most obviously, it’s a dramatic reversal of everything conservative defenders of “traditional marriage” have believed for decades, although no new information is cited in the change of opinion. Essentially, it’s a pretty ludicrous argument to make.

But as ludicrous as it is, it has one important thing going for it — it’s totally new, and hasn’t been seen in the hallowed halls of anti-gay argumentation before. This doesn’t mean it will be effective, necessarily, but it does mean that Clement – and perhaps others – have realized that the old arguments will be totally ineffective. The conservatives have lost faith in their ability to win with spurious anti-gay claims; even the nuttiest of nutjobs can no longer convince themselves that telling a judge that gay moms are evil, or that gay people aren’t really gay, will work. Which is a pretty amazing victory, and which means that we have reason to hope for real victory on DOMA.

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13 Comments

  1. Thumb up 1

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    It’s not actually a novel argument. In a New York case, Hernandez v. Robles, the court used the same “logic” to rule that the NYS legislature could have had a rational reason for restricting marriage to opposite-sex couples. The flawed (to be polite; “flat-out dumb,” to be honest) logic is opposite-sex couples need incentives to marry so children can be raised by married parents while same-sex couples don’t need those incentives because they can’t accidentally pop out a kid at any time, so it’s reasonable for the legislature to confer extra benefits on married people and to restrict marriage to opposite-sex couples.

    The logic is terribly flawed but was enough for the NYS court of appeals under rational basis review. IT probably wouldn’t suffice using higher standard of review, or a different court could decide the argument actually isn’t even rational at all and isn’t even enough under rational basis review.

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      The same argument was also used by Charles Cooper, the lawyer defending Proposition 8, during closing arguments at the Proposition 8 trial in San Francisco.

  2. Thumb up 9

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    Wait, so … ummm … no. I’m lost. Normally I can follow the logic of ridiculous arguments, even when completely twisted. I just can’t follow this one at all.

    Because … If I understand correctly, an entirely planned for and deliberate pregnancy, if undertaken outside of wedlock … is irresponsible? But “unplanned and unintended offspring” within a marriage is totally fine because the parents are married? So it’s important to encourage as many people to get married as possible. And this means that gay people shouldn’t get married because … ?
    Yeah, I’m not following this. So I’m going to stop because I’ve already used too many ellipses.

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      Here’s what the Republican Representatives are arguing:

      1. Mixed-gender couples are handicapped (most of their offspring are unplanned and unwanted).

      2. Government’s helping mixed-gender couples with their handicap, not hurting same-gender couples.

      3. Government is just helping the majority, not discriminating against a minority.

      4. Same-gender couples are childless, so they need no help.

      #1 is ludicrous, and #2, #3, and #4 are false. But the Republicans believe their own lies, and hope the Court will, too.

  3. Thumb up 5

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    This argument is not new (Hernandez v. Robles), but just as stupid now as it was back then.

    However, in a way, the extreme focus on the value of marriage, rather than a more neutral equal protection analysis makes these arguments possible. I truly wish that marriage would not be seen as the only good and moral way to live. This society should finally get rid of its old notions of marriage as being the only decent and safe form of family – merely opening marriage to gay, lesbian and bi persons will not achieve this.
    So, whereas I am all for marriage equality, I am a bit frustrated with the way some of these cases are argued – from both sides.

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    I literally just face palmed. I can’t even comprehend what they’re trying to say, and the things I do understand still don’t make sense. They’re just embarrassing themselves now, I mean really, give it up. There are much more pressing issues than this, why are they wasting their time? In the end, it’s going to happen whether they like it or not.

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    This argument makes no sense. It doesn’t talk at all about why people shouldn’t have the right to a same-sex marriage. It just takes a swing against people who have children out of wedlock.

    And so they’re saying that two unmarried people who are very responsible and make the decision to have a child together and go through all the steps… is fine, and in fact the only choice if you are a same-sex couple, but not if you’re two different-sex people? Er… what?

    Not to mention that it makes the assumption that marriage=babies.

  6. Thumb up 2

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    IF children and procreation were requirements for marriage – then please explain why they are NOT a requirement for marriage, why – in fact – are they not even mentioned in the marriage contract, vows, or ceremony?

    NOT EVEN ONCE. NOT EVEN IN RELIGIOUS CEREMONIES.

    You’d think that if it were the sole limiting factor on what makes a marriage “valid” they’d at least get a bit of a mention in the ceremony!

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