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?