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The purpose of marriage is to create unplanned and unintended offspring

Jill

That is actually an argument being made by anti-same-sex-marriage litigators. To the Supreme Court of the United States. This is not a joke. Someone give this guy a raise, because this is creative:

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.

House Republicans! They always find the best guy for the job.

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.”

Marriage should exclude gays because they aren’t irresponsible enough for marriage, and if they have children it means they actually wanted them and took proactive steps to reproduce. This is a real argument.

It is nice, at least, to see that even the finest conservative legal minds in our country have an impossible time making the argument that the state has any sort of legitimate interest in limiting marriage to opposite-sex couples.

88 thoughts on The purpose of marriage is to create unplanned and unintended offspring

  1. But unless you can show that marriage is solely for the purpose of having children at all, this “argument” is irrelevant, isn’t it?

  4. Buh? Is this like harkening back to the shot-gun wedding days, where straight people get married because whoops-I’m-preggo?

    On the other hand, the anti-marriage crowd doesn’t have a lot to work with. There just aren’t any good arguments against two adults being allowed to get married. It’s good for the couple. It’s good for society. It’s good for kids. It’s good for the economy. It’s good for freedom and justice and liberty and all that stuff we supposedly like in this country. We’ve decided as a country and a government and a culture that marriage is good for all these things, that the government has a stake in marriage, and there are just no real arguments that support denying the same benefits and responsibilities to people who don’t necessarily fit the standard man-woman gender pairing. So we get this sort of brow-furrowing wtf argument. If you recall, the prop 8 side of this case when it was tried in California was laughably, painfully, gloriously one-sided. Not even close.

    So the big question is: does the conservative half of the SCOTUS have the audacity to rule against the lower courts despite the paucity of actual arguments? What takt will they take if they do? Will they just make up an argument and put it in the decision, or will they pretend that such drivel as “unplanned babies are the singular beneficiaries of marriage” are real arguments?

    1. more like bow and arrow or sling shot wedding days. by the time shot guns were invented the concept of choice in marriage was already gaining traction.

  6. Ummm… that doesn’t sound like an argument against marriage equality, it sounds like an argument for forced marriages for heterosexual couples who are expecting a child. And when the logic gets that convoluted, it might be time to pack it in and go home…

  8. I love this argument because it is so very easy to knock down. If you accept that marriage is only for people who can procreate, then you have to tell your poor widowed grandmother that she can’t remarry because she can’t have children any more, and you have to tell sterile couples that they aren’t allowed to get married. It’s patently ridiculous on its face, so I love that they’re using it.

    1. I know. If anything, the “marriage is solely about kids” argument would make more sense if you were arguing to abolish it entirely–restrict it only to couples in which one gets pregnant. Of course that raises its own set of problems and contradictions, but at least it is somewhat consistent.

      For that matter, what couples where the man has had a vasectomy, or the woman a tubal ligation, or even a woman who is on a “fool-proof” form of birth control like Implanon or Mirena? It’s nearly impossible to get pregnant on one of those, so by his logic, it seems like women who want to get married shouldn’t be able to use them. But he might actually support that so maybe we shouldn’t mention it…

        1. I hear an underhanded smearing of single moms mixed in with their anti marriage equality backwoods logic. The backward worldview is that nuclear families are the only divine way and all gays and single moms are sluts who go to hell.

  9. As much as I get what you’re saying and absolutely hate to defend people like this, I think the title of this post is the opposite of what’s meant: marriage is meant to PROTECT the unplanned and unintended offspring by offering more resources, etc. Because gay couples rarely have unplanned pregnancies, it’s assumed they’re more able to provide for them because they’ve planned them carefully, and therefore need fewer of the safety nets provided by “traditional marriage.” It’s a fairly big statement, actually, to publicly state that states are responsible for the well being of the offspring of married people if those married people are unable to support them.

    It still denies safety nets to gay couples and their children, of course, and makes a pretty dense assumption about the economic status of gay couples, which is abhorrent and therefore makes absolutely no sense, but I really think it’s misleading to interpret this as saying unplanned pregnancy is the PURPOSE of marriage. That’s just twisting it backwards.

    1. Right. I read this as “marriage is meant to contain the negative fallout of adult sexuality, re: procreation,” which is cynical as all hell.

    2. Sorry, but I just don’t see it. The states already are responsible for the well-being of the offspring of *any* people if those people are unable to support them; that’s why things like Social Services exist. If anything, this argument is a way to dodge that responsibility since some forms of assistance tend to only be available to single parents or have a strict income cap. In fact, the “welfare reform” of the nineties focused explicitly on getting people off of public assistance by incentivizing marriage. I’m trying to think of forms of the “safety net” that would apply specifically to unplanned offspring, but so far all I’ve got are things like inheritance and pension benefits in the event that one parent dies–which should apply just as easily to “planned” children as to “unplanned.”

      I agree that the title is misleading, but I don’t think that your argument that there’s anything “big” or admirable in their position holds water.

    3. How does that make the argument any better? It still runs into the fact that the state provides preferential treatment to all heterosexual marriages including ones that are not from shotgun weddings, where there are no such offspring, or where any offspring are equally planned. With heterosexuals, the state makes no effort to distinguish whether the marriage will benefit any offspring.

    4. The argument still makes no sense. My husband and I are a high-income couple. We planned our child. So if marriage is about protecting unplanned/unintended offspring, my husband and I should not be able to be married. We particularly shouldn’t be married since we got married multiple years before we had our planned offspring.

      Basically, the argument is incoherent because marriage ISN’T about expanding resources for unplanned children in any way shape or form. Marriage has been about many things over the years, but I can’t think of any time or culture where the primary purpose of marriage was to safeguard unplanned children. The lawyer may as well be arguing that straight couples should be able to marry and gay couples shouldn’t because straight contains the letters “aig” and marriage contains the letters “iag” but gay only contains an “a.” The argument would be as connected to reality and make as much sense.

    5. There could be a crypto-religious aspect to Clement’s argument that would support Jill’s assertion. The same evangelical and Catholic groups that most strongly oppose marriage equality also oppose the use of birth control – children are gifts and responsibilities sent by God, to be born and raised at His pleasure and command without human consultation or interference. Since children are only supposed to be conceived in wedlock, marriage then becomes the only “proper” state in which to have sex and reproduce. Marriage equality and planned childbirth, to adherents of such ideologies, is a corrupt human mockery of God’s will and something to be opposed at all costs.

      It’s a stretch, I realize, but the original argument is weak and self-defeating anyway. They

      1. marriage then becomes the only “proper” state in which to have sex and reproduce

        That pretty much sums up the Catholic Church’s stance on sex and reproduction. They wrap it up in some flowery language about the unitive aspects of sex and how opening oneself up to reproduction in marriage through sex both brings the married couple closer together while also bringing them closer to G*d. But the bottom line is that sex is supposed to be all about reproducing while married.

        Mind you I don’t believe any of that business, but that’s definitely what I was taught in Catholic school and in CCD classes.

        1. Yep, in order for the Catholic church to find sex acceptable, it must be both “unitive” (between married people, in love, consensual) and “procreative” (vaginal, no birth control used, heterosexual). I have no idea what the rules are for elderly people. (I’m also not sure if oral sex is permitted or not.)

        2. @Alyson: rest assured, oral sex is not permitted. I know b/c we asked the priest during our marriage prep weekend retreat (we just had to make him say it). Also, handjobs and masterbation = not permitted. Any kind of sexual activity that could not lead to procreation is not allowed. It leads to a “disconnect” between the husband and wife (according to the supposedly virgin men who make up these rules). Most of the people at the retreat just rolled their eyes at that, but a few were, honest to Jeebus, nodding in agreement. [SMH] I wish I had done away with all that god nonsense prior to getting married, but alas, I was still trying to justify all the crazy so we wasted a perfectly good weekend getting sex do’s and don’ts from a man that has never in his life had sex. Makes perfect sense.

    6. Yes, I kind of read the argument as: “Het couples sometimes have unplanned, out-of-wedlock pregnancies, therefore het couples need the marriage option in order to turn those into in-wedlock pregnancies with all the benefits of a nuclear family. Gay couples do not have unplanned pregnancies, therefore they don’t need marriage.”

      However, even if you accept this argument at face value it would still not be a reason to =deny= marriage to gay couples. There are a lot of things I don’t need, but it would be really crummy for the government to ban me from having or doing those things. I may not need a Ferrari but I certainly =want= one, and marriage is a lot more important than a fancy car.

      Also, note that I do not accept the argument at face value, for all of the reasons already given (what about infertile couples, older couples, etc.) but also because it ignores the possibility of planned offspring. Just because a gay couple can’t have an unplanned pregnancy is not a good reason to deny planned children (and their parents) the same nuclear-family benefits.

      So the argument fails in multiple ways, both because its assumption is faulty, and because its consequences would be faulty even if the assumption were sound.

  10. The purpose of my heterosexual marriage was to get my husband some health benefits. If we each had access to good benefits we probably would have continued “living in sin.” And I guess the republicans would be okay with that since we’re unable to “produce unplanned and unintended offspring.”

    1. I bet that’s their next argument against universal health care: “Without the incentive of health insurance, people will have no reason to marry, and this important institution WILL CRUMBLE.”

        1. Well, we’ve exchanged one form of coercion for another. What does it say about marriage, I wonder, that it seems often to depend on coercion?

        2. That’s what determined our marriage. I needed my boyfriend’s medical coverage. (25 years ago and living in California. Don’t have to do that in Canada.)

        3. This is exactly why my husband and I got married. My husband wanted me to be able to afford my endocrinologist.

    2. The purpose of my heterosexual marriage was to get my Green Card. Otherwise we would have continued to live in sin. Until my partner lost his job and needed health insurance through mine. Both of these things – health insurance and immigration status – illustrate, without invoking unplanned kiddie production, exactly why the possibility of homosexual marriage is a necessary civil right in our society.

  12. One of the many logical problems with this stupid argument is that marriage cannot exist in order to solve the “problem” of children born out of wedlock, because without marriage, we would have a society in which children being born out of wedlock is the norm, so the society would have developed to take care of that.

    That is, if there isn’t an expectation that a two-married-parent household will take care of children, children born out of wedlock couldn’t be perceived as a drain, rather than just…regular life.

    1. Seriously. My initial reaction to this was that ALL children are an equal burden on society because they all need to be fed and housed and cared for and loved right? right!?

  13. As was mentioned in the comments at LGM (where I first heard this), this argument was apparently accepted by the NY Court of Appeals in Hernandez v. Robles. If true, I want to know what the judges were thinking.

  15. It does sound like an excellent argument for the abolition of marriage. Shame that wasn’t anywhere in the intention, really.

  16. It’s ok everyone! We don’t need marriage to deal with the burden of unplanned pregnancies anymore. There’s these wonderful things you may not have heard of, called contraception and abortion. No need for marriage for ANYONE!

    But seriously, we need to take these arguments with a grain of salt. I think it’s most likely opponents of gay marriage simply think homosexuality is sinful and immoral and disgusting. They know they can’t just come out and say that, so they concoct these convoluted arguments.

  17. I’m all sorts of confused. I thought unintended and unplanned pregnancies were the result of us slutty, trampy womminfolk believing we have the right to sexual agency? And that makes us the filth under the pearly white shoes of the GOP? But now, they are worried about these unplanned pregnancies and are showing us the love with the fact that we can be respectfully married?

    Guess I’ve been confused who this group is ready and willing to toss under the bus. I was sure it was anyone presenting as female who had sex!

  18. No, the claim is that marriage is a public policy put into place to respond to the phenomenon of unplanned offspring, not that marriage is intended to create said offspring. It’s still ridiculous, but not at all what the article claims.

    1. There’s a grain of truth in that, if your mind is stuck in 1953.

      Before the advent of reliable contraceptive drugs and devices, pretty much every other pregnancy was an unintended, unplanned one. People had sex and pregnancy was the natural consequence.

      I for one am very glad that we are not stuck in 1953.

  19. when my girlfriend accidentally impregnated me some years ago, instead of getting married (which we wouldn’t be able to anyway) I got an abortion.

      1. Why, exactly, are you thanking someone you (presumably) don’t know for having an abortion?

        I’m not snarking, I’m genuinely curious. This is confusing to me.

        1. I’m assuming she’s thanking them for articulating the fact that abortion is a solid option for people dealing with unplanned, unintended pregnancies (and therefore the idea that marriage fulfills that function is extra stupid).

  20. I guess a more accurate title would be “The purpose of marriage is to deal with unplanned and unintended offspring.” Which idea is still dumb as hell, but at least is coherent enough for me to tell that it’s dumb as hell.

    1. Yeah. Maybe this is just nitpicking, but when someone makes a stupid argument, I’m a big fan of just pointing out the argument is stupid, not making up a different stupid argument to attribute to them. It’s a brand of obnoxious snarking that I’ve noticed a few times on liberal blogs, and I think actually distracts from the point. It seems almost insecure, like the author doesn’t believe representing their opposition honestly would make the fault in their logic obvious enough.

      Sorry to sound like a jerk.

  21. Hey, remember when we tried distributing parental support solely through the institution of marriage? And it led to a complete lack of support for single mothers and unmarried couples? And then we used that lack of support to coerce unmarried mothers into giving their children up for adoption, or just plain took away their babies? Yeah, well, marriage is still a really silly way to distribute parental rights and support, since people are still going to have children outside of wedlock (sideline: isn’t that phrase just super creepy?). Some of whom will be planned. Some of whom will be unplanned. If marriage is actually a policy designed to respond to unplanned and unintended offspring, it’s a really, really bad one.

  22. The GOP has been bowing to their bible thumping majority for a long time now and they are failing. I foresee the GOP dwindling in size and never winning either the White House or the majority in both houses of Congress.

  23. I love the double implication that couples that get married and then don’t have children are just worthless parasites, skimming the benefits of marriage off of the backs of hard-working, 2-child families.

    *smokes a cigar rolled from taxpayer dollars*

  24. The fact that Clement was the goddamn motherfucken Solicitor General of the United States (the government official responsible for arguing on behalf of the United States before the Supreme Court in cases in which it is a party or as an amicus) makes me sick to my stomach. And not because of the specific content of his argument, but because it is *sooooooo* fucken bad.

      1. I don’t think he necessarily wants to lose (that would be a professional ethics violation, no?), but I also suspect he knows his clients are going to lose, and thus is reduced to cooking up arguments that sound good to them, even if the court effectively says “wtf is this shit?” That other courts have reportedly accepted such reasoning baffles me; it seems like a spectacularly obvious equal protection violation that was just waiting to be pointed out and litigated. Restricting marriage rights to het couples because they may have unplanned offspring is pretty thin gruel.

        I think I intended to type this last night in response to an earlier comment, accidentally hit “post”, and promptly forgot about the whole thing until this morning.

        1. Actually, i don’t think that’s the case at all. He’s using an argument that was actually already successful in one circuit court (I KNOW). His job here is to find any rational reason for the government to refuse to extend marriage rights to gay people. It’s not a high bar — they just have to have any reason within the realm of rational thought — but in the case of marriage equality, there really aren’t a whole lot of rational reasons. Early on in the litigation, conservatives tried to argue that same-sex marriage was bad for children or posed moral issues; unfortunately (for them), they couldn’t actually find any expert witnesses who could testify to that issue, since all of the studies show that same-sex partnerships only have a negative impact on children when their parents are legally barred from getting married.

          So anyway, no, I don’t think it’s that he’s cooking up arguments to please the base. I think it’s that this is literally the best argument he has.

        2. I was thinking/hoping maybe his subconscious was having a rebellious moment of “Oh hell no.” What really gives me the horrors is that courts in the States have entertained such arguments before and even found for them.

          And of course as you and Jill both point out, all of their arguments are, shall we say, lacking in every way possible.

  27. And here I thought the conservative line was that children are a gift from god and it doesn’t matter what anybody intends.

    Logic, it runs away screaming from the Right.

  28. “Unintended children produced by opposite-sex relationships and raised out-of-wedlock would pose a burden on society.”

    So unmarried heterosexuals are more of a burden to society than unmarried homosexuals? Is it just me or does this seem like targeted misogyny? As far as I know, the vast majority of unintended children raised out of wedlock are raised by the mother.

    1. There’s more misogyny than that buried in the whole argument.

      The only possible way that a marriage could not result in unplanned, unintended offspring within the marriage is for two gay men. Lesbian and bi women and some trans men can become pregnant through rape (the thought of a lesbian or bi member of the military being raped, and trying to explain to the wife back at home what happened, and oh by the way since the military doesn’t typically pay for abortions we’re having a kid and you are forbidden to take said kid to the doctor on the base or schools on base or the petty officers’ wives club mom’s morning out on base because of DOMA, makes me want to be ill). A bi woman married to another woman could have partner-sanctioned playtime with a man and whoopsie. ( I suppose that a cis woman + trans woman or cis man + trans man could even count, although I suspect that prevailing laws in most states would define the trans partner as being opposite-sex.)

      That’s not to say that the bi-partner-whoops-pregnant situation can’t happen with a gay man and a bi man, but, critically, it wouldn’t happen within the marriage itself. Compared to the chance of unintended childbearing that women in same-sex couples face, it’s probably rare enough to be negligible.

      I don’t even have the words to express just how messed up this is.

  29. By this logic, don’t we have to prevent marriage from dissolving on the death of the spouse if there is a child? How can we protect children from the actions of deadbeat dead parents refusing to support them if we don’t demand that dead people remain married to their spouses?

    Also divorce would have to be illegal.

    2. How can we protect children from the actions of deadbeat dead parents refusing to support them if we don’t demand that dead people remain married to their spouses?

      Simply return the child to the womb. Problem solved!

      /conservative logic

  30. This is the natural consequence of a position that has no factual/logic basis. Grasping at straws is all you have.

    I can’t imagine being the lawyer tasked with making this argument is much fun. You’ve gotta know it’s painfully stupid, and likely to lose (and if you actually won? Oy.).

  32. Dammit, can’t we just eat the children of unmarried people? What is this “marriage” drivel and whatever happened to good old Swift-style solutions? 😀

    1. It’s been done in some rural areas. I know of three cases, one of which reputedly inspired the filing of the first food stamp bill in the late sixties. All were done without the mother’s initial knowledge, and one mother was crippled for life from a murder attempt to silence her.

      2. What? Is there somewhere I can read more about this? People just stole and ate “illegitimate” infants in the early-to-mid sixties?

  33. I think the people who are saying this argument is stupid and destined to fail are missing the point. Remember, the court isn’t evaluating the success or efficiency of the policy in question, but rather whether the policy has a reasonable connection to an end that is is legal for the government to pursue. That’s a very different argument than whether the policy is a good idea, and there’s no particular reason to think a court wouldn’t (entirely correctly) see caring for children as a legitimate government interest and marriage as a plausible tool to advance that goal, even if the people sitting on that court all believed that marriage was a really bad way to advance that goal.

    1. I don’t think we’re missing the point so much as it is that the point is stupid (not you; the fact that this point is true). That point is one of the reasons I did not want to go into law–the elevation of points of legality over points of logic actively disgusts me.

      1. Fair enough!

        I actually am really comfortable with separating the people who decide if something is a good policy from the people who apply tests like reasonable basis. Sure, the lines get blurry sometimes, but basically it’s a good idea to have the elected branches of government responsible for the former. The alternative is to have judges delving into necessarily political questions like ‘is it a better idea to tax sales at 6% or 6.3%?” and that’s not really healthy.

        I get that in specific and limited instances it’s frustrating when a judge rules against a cause one supports, but the general principle is important. We may be more aware of the times it gets in the way of causes we support, it’s important to remember that conservatives feel the same way.

    2. and the counter is that marriage supposedly does way way more than protect kids. It supposedly protects financial supports like inheritance, social security benefits, and tax benefits such as deductions for a non-working for money spouse (well it actually does). Retired homosexuals need to eat to, and without marriage a non working outside the home homosexual spouse will get their 600 bucks a month poverty benefit from social security and like it should their spouse die.

      In the case of kids it is the child support laws, not marriage, that protect them. Anyone actually paying child support knows this, no matter how the child was brought about.

  34. No amount of licensure will make a het man (or woman) choose to support his children, whether intentionally conceived or otherwise, if he prefers to support his bookie and his dope man. Only the shotgun will make him sign the license, if he decides to disavow the conception.
    In numerous cases, the unplanned result of an unplanned het marriage is the bread and butter of a divorce attorney. Gays should have the same opportunity to support an overpopulated profession.

  35. Pingback: DOMA Defense Lawyer to Supreme Court: Marriage Between a Man and Woman Because They Can "Produce Unplanned And Unintended Offspring" - politiColonel — politiColonel

  36. At LGM (linked above by another commenter), they were talking about how this argument was about “rational basis” — and the other parts of Clements argument quoted on The Colbert Report seemed to imply that Clements is also trying to influence whether this is looked at with strict scrutiny or whatever other kinds of scrutiny — basically, I am very, very obviously and emphatically NOT A LAWYER, so Jill, could you explain further, pretty please? I know you discussed the “rational basis” thing a little bit above, but if you could elaborate, that would be awesome.

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