The Mind-Boggling Argument against Gay Marriage, and the Men behind It


It turns out that straight, sorry, opposite-sex, marriage is basically a backup plan in case of pregnancy.

So said attorney Paul Clement, who is representing congressional Republicans, in a brief filed two months ago with the Supreme Court. The Justice Department submitted their own friend-of-the-court brief last week.

Yahoo! News reports that Clement said that opposite-sex (his words) couples have the unique tendency to produce unplanned and unintended offspring. Moreover, he added that the government has—get this—a legitimate government interest in recognizing opposite-sex marriages.

But his reason why the government should support these traditional marriages seems ridiculous, if not illogical, irrational, and far-fetched. And could fertile people only be allowed to marry next? How about a ban of marriages between elderly men and women, who can’t have children naturally past menopause in their late 40s or early 50s?

Clement argued in the 60-page brief that the federal government should protect these couples because the “oopsy” babies they produce actually encourages families. That argument is to form the main dissenting opinion in two cases the Supreme Court will hear at the end of this month.

Hollingsworth v. Perry, which is set to be argued March 26, seeks to challenge Proposition 8, California’s gay marriage ban. United States v. Windsor, which is supposed to be argued March 27, seeks to overturn the federal Defense of Marriage Act (DOMA). DOMA defines marriage as the union of one man and one woman. In doing so, the law doesn’t recognize gay couples at the federal level.

Last week, the Justice Department wrote in another brief that marriage is far more than a way to deal with unintended pregnancies. The Justice Department also asserted that allowing same-sex couples to marry would not discourage opposite-sex couples from tying the knot.

Associate Justice Richard J. Cordy, the article alleges, originated Clement’s argument. Justice Cordy was among the three justices dissenting in Goodridge v. Dept. of Public Health (2003). The landmark case, however, legalized same-sex marriage in Massachusetts, which became the first state to do so.

Currently, nine states and the District of Columbia (2009) recognize same-sex marriage. Massachusetts was followed by Connecticut (2008), Iowa (2009), Vermont (2009), New Hampshire (2010), New York (2011), Maine (2012), Washington state (2012), and Maryland (2013).

Justice Cordy has served on the Massachusetts Supreme Judicial Court, which heard the 2003 case, since 2001. Massachusetts Gov. Paul Cellucci (R) appointed Cordy in February. From 1991 to 1993, he served as Chief Legal Counsel to Governor William F. Weld, another Republican.

Weld created the Governor’s Commission on GLBT Youth in 1992, which Celluci later expanded in 1998. Weld also signed the Gay and Lesbian Student Rights Law in 1993. In doing so, he made Massachusetts the first state in the country to outlaw discrimination against GLBT public school students.

Paul Clement, former U.S. solicitor general under then-President George W. Bush, is a prominent private practice lawyer. According to Reuters, he is a conservative favorite. The article goes on to state Mitt Romney would have likely appointed Clement to the U.S. Supreme Court if he had won the presidency. Clement garnered support from the Committee of Justice, a group that advocates for conservative nominees. Mary Ann Glendon, co-chairwoman of Romney’s Justice Advisory Committee, voiced support for him as well.

Presidential hopeful John McCain apparently would have nominated Clement too, intimated an October 2008 USA Today article. The article added that Republicans have trended to appoint men in their 40s and 50s. Clarence Thomas was 43 at the time of his appointment.  Chief Justice John Roberts was 50.  Justice Samuel Alito was 55.

Clement, 46, argued for the Supreme Court to strike down Obama’s 2010 healthcare law. He has defended the Bush Administration’s detention of terrorism suspects and Arizona’s anti-immigration law, which Gov. Brewer has vowed to take to the Supreme Court, and has argued on behalf of the NRA. The New York Times points out in an Oct. 2011 article that, since 2000, Clement has argued more cases before the Supreme Court than any other lawyer.

Are the Republicans up to something and, if so, what?

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