Congressional Republicans Argue DOMA is Valid Because Same-Sex Couples Can’t Get Pregnant “Accidentally”

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The argument has been around for at least 10 years, and has been central to almost every same-sex marriage case ever ruled on.

Paul Clement, one of the attorneys representing congressional Republicans in the DOMA case currently before the Supreme Court filed a brief arguing that the federal law, which does not recognize same-sex marriage as valid because, “Only a man and a woman can beget a child together without advance planning.” Clement asserts that DOMA should be upheld because the federal government has a “legitimate interest” in recognizing only opposite-sex marriages because otherwise they may not feel the need to form “stable family units.” Unfortunately, this is far from a new argument. As Yahoo News points out, the assertion that same-sex couples could not accidentally get pregnant became central to the debate in 2003, when the Massachusetts state Supreme Court ruled to legalize same-sex marriage.

The one justice who dissented in the ruling, Robert Cordy, is credited with introducing the unintended pregnancy concept in his dissent, when he explained that the government does have a stake in defining marriage as only between men and women. Cordy argued that providing the benefit of legally recognized marriage coaxes straight couples into forming stable family relationships when they have children, which helps society as a whole.

An “orderly society requires some mechanism for coping with the fact that sexual intercourse [between a man and a woman] commonly results in pregnancy and childbirth. The institution of marriage is that mechanism,” he wrote. The institution of marriage sends a message to men that they must help rear children, and thus the state has an interest in encouraging it so that fewer children are raised with only one parent. The state has no such obligation to encourage same-sex couples to wed, however, since they can only procreate together by making a decision to adopt or to use reproductive technology.

Since 2003, Cordy’s reasoning has been cited in nearly every gay marriage case, and an evolved version of it is seen in the Proposition 8 case and the challenge to the DOMA law, which prevents the federal government from recognizing same-sex marriages.

The Obama administration however, has taken a “dim view” of this argument. In the brief filed by the Justice Department on behalf of the administration last week they said, “Marriage is far more than a societal means of dealing with unintended pregnancies.” They also assert that refusing to allow same-sex marriage has no influence, good or bad, in the “quest to encourage straight couples to marry when they have children.”

Same-sex marriage is already legal in nine states in the US and the District of Columbia.

Do you think the argument that same-sex couples can’t get pregnant accidentally should even be considered by the Supreme Court when ruling on DOMA?

Considering the number of children born out of wedlock in the US since 2003, do you think this argument has any validity?

Photo: dbking/Flickr

About Kathryn DeHoyos

Kathryn DeHoyos currently resides on the outskirts of Austin, TX. She has 2 beautiful children, and is very happily un-married to her life partner DJ.


  1. David May says:

    A similar argument was used with the Washington State Supreme Court. The Court (which was drawn over the coals in the local media for both the decision and their reasoning) said that the state needed to protect marriage for those who reproduce. What was ignored was the logical next step that all non-reproductive marraiges should then be anulled for their failure to fulfill the state’s vested interest in reproducing couples.

    Fortunately, Washington overwhelming approved marriage equality by popular vote in 2012.

    • wellokaythen says:

      And, of course, there’s the obvious fact that the state does not require that married people have sex with each other at all. From the government’s point of view, your eligibility to get married has nothing to do with how much sex you’re having, or if you’re having any at all. Theoretically, a couple can practice total abstinence (like conservatives want them to, right?) and they can still get married. So, the connection between sex and marriage isn’t legally established in the first place.

  2. sayitandmeanit says:

    If everyone would mind their own business and let people live and stop making decision for people who have no effect on them, they could probaly focus on the important things such as, medicare, jobs, economic financial growth, instead of people and who they love! GET A LIFE PEOPLE!

  3. wellokaythen says:

    “The state has no such obligation to encourage same-sex couples to wed, however, since they can only procreate together by making a decision to adopt or to use reproductive technology.”

    Let’s take that as a legitimate argument. Let’s say that protecting “oopsie babies” is the prime function of marriage.

    Well, okay then, by a parity of reasoning, ANY infertile couple, even a hetero couple, should not be allowed to get married. If one or the other becomes infertile while married, their marriage should be legally dissolved. If I get a vasectomy, then I should not be allowed to get married. Once a married woman gets a hysterectomy, her marriage should be legally dissolved. If the “inability to get pregnant accidentally” disqualifies a couple from getting married, then that disqualifies millions of hetero Americans! No woman past her childbearing years should be allowed to get married, then.

    An infertile heterosexual couple has exactly the same chance of an accidental pregnancy as a same-sex couple.

  4. John Schtoll says:

    Well done rez, well done.

    You are so right, society has pretty much decided that two parents are irrelevant, from out laws to our customs. Society and the law make no effort to keep families together , they offer no incentive for parents to “work things out” in fact, they offer huge incentives to do the opposite. Shared parenting is a prime example of this. Very few states have a presumption of shared parenting in theory, let alone in practise.

  5. Well, the argument has some legitimacy. The act of PUBLICLY attesting to an action or a behavior does provide some reinforcement to living up to one’s commitment – some of the time, for some people, To the extent that children do often benefit from two parents – economically, human resources, insurance against a parent dying, a more extensive extended family, two attachment figures, possible protection of children’s bonds – a committed marriage is a good thing, in theory.

    It makes NO sense to then claim that same-sex couples are somehow different. If there are such benefits, why should those children (of adoption, surrogacy, blended families, or donation) not also be advantaged with same. The application of the first part of the argument is completely nonsensical in its application to ONLY opposite sex couples.

    Nor is marriage a panacea. Human relationships are complex, and in a society where stress levels are astronomical, marriages will break down whether the vows are written in fresh blood, or made as an e-mail announcement to friends. There is no longer any social opprobrium involved in the dissolution of a relationship, so the public vows are of very limited effect.

    If the state actually wanted to improve the institution of marriage, it would support the rebuttable presumption of shared parenting, instead of just focusing on the economics of child support. It would combat the primary caregiver model, where primary caregiver is always the mother. It would look to reduce stress, by improving employment opportunities, and placing as much control as possible in the hands of its citizens, The state, and society by extension since it is a democracy, choose not to do these things. To me, this means that marriage is actually a matter of indifference to most.

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