Gay marriage opponents take unusual tack with Supreme Court


WASHINGTON — Marriage should be limited to unions of a man and a woman because they alone can “produce unplanned and unintended offspring,” opponents of gay marriage have told the Supreme Court.

By contrast, when same-sex couples decide to have children, “substantial advance planning is required,” said Paul D. Clement, a lawyer for House Republicans.

This unusual defense of traditional marriage was set out last week in a pair of opening legal briefs in the two gay marriage cases to be decided by the Supreme Court this spring.


Lawyers defending California’s Proposition 8 and the federal Defense of Marriage Act want the high court to decide it is reasonable for the law to recognize only marriages between opposite-sex couples.

Conservative attorneys did not argue that gays or lesbians engaged in “immoral” behavior or lifestyles. Instead they emphasized what they called the “very real threat” to society posed by opposite-sex couples when they are not bound by the strictures of marriage.

The traditional marriage laws “reflect a unique social difficulty with opposite-sex couples that is not present with same-sex couples — namely, the undeniable and distinct tendency of opposite-sex relationships to produce unplanned and unintended pregnancies,” wrote Clement, a solicitor general under President George W. Bush. “Unintended children produced by opposite-sex relationships and raised out-of-wedlock would pose a burden on society.”

“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,” argued Washington attorney Charles J. Cooper, representing the defenders of Proposition 8. Same-sex couples need not be included in the definition of marriage, he said, because they “don’t present a threat of irresponsible procreation.”

In one case from New York, the court will decide whether the federal government may deny equal benefits, such as filing a joint tax return, to legally married gay couples. U.S. appeals courts in Boston and New York struck down this part of the Defense of Marriage Act on the grounds it denied gay couples the equal protection of the laws. The Obama administration chose not to defend this provision, so the House Republicans hired Clement to argue in defense of the law.

In the California case, the court will decide on the voter initiative in 2008 that limited marriage to a man and a woman. The 9th Circuit Court of Appeals voided this measure on the grounds it took away from gays and lesbians the right to marry, which they had won before state judges.


In the lower courts, defenders of the traditional laws struggled to explain why committed couples of the same sex should be denied the benefits of marriage. The plaintiffs include same-sex couples who are raising children.

Clement and Cooper do not address that issue directly. Instead, they argue that it is reasonable for the law to steer opposite-sex couples toward marriage, including by giving them extra benefits. “It was rational for Congress to draw the line where it did,” Clement said, “because the institution of marriage arose in large measure in response to the unique social difficulty that opposite-sex couples, but not same-sex couples, posed.”

In another part of their brief, they argue for the high court to stand back and to let the “democratic process” resolve the dispute over gay marriage. Both note that voters in several states recently approved same-sex marriage, and opinion polls report that most Americans now favor it.

Clement said gays and lesbians are hardly a politically powerless minority subjected to discrimination and in need of protection from the courts. “Gays and lesbians are one of the most influential, best-connected, best-funded and best-organized interest groups in modern politics, and have attained more legislative victories, political power and popular favor in less time than virtually any other group in American history,” he wrote.

Congress has repealed the ban on gays serving openly in the military, and it might repeal the Defense of Marriage Act too, Clement said. And Cooper noted that California voters could put a measure on the next ballot and repeal Proposition 8.

Next month, gay rights advocates will file their arguments in favor of striking down the two laws. The court will hear arguments in the cases on March 26 and 27.