PANIC ROOM

From the briefs filed in the impending Supreme Court case in California's Prop 8:

Paul D. Clement, a solicitor general under President George W. Bush and now representing House Republicans, argued that marriage should be only for men and women because only straight couples can 'produce unplanned and unintended offspring."

By contrast, if gay people want to have a child, "substantial advance planning is required."

So planned children are – bad? And unexpected, possibly unwanted children are – good?

And that’s a sound legal argument against gay marriage?

According to Clement, yes, because "unintended children" born and raised out of wedlock "would pose a burden on society." As of 2010, about 40% of U.S. children are born out of wedlock, 10 times the number of 50 and 60 years ago. No one calls them "illegitimate" or "bastards" any longer, and their birth does not send their parents racing to the altar in order to shield the child from now-nonexistent shame – and to save "society" from the burden of supporting them.

I'm going to pause while you re-read that until you can figure out what in the hell they're even arguing. If at first glance it makes no sense whatsoever, do not adjust the contrast. You're perceiving things correctly.

You're used to me taking potshots at right-wingers for lacking ideas other than "Cut taxes" and "Fire cruise missiles at it." This, however, is not an example of people who are out of ideas. These are people who have a vast number of ideas, and all of them blow. These are people scrambling for something to plug the leak while their boat sinks. If it isn't time for full blown panic, it's close to it.

Recently I've noticed a trend – hearing people talk about these issues regularly over time gives me an interesting perspective on how the goalposts and talking points shift – toward perhaps the last plank of the anti-gay marriage platform that could reasonably be called a legal argument: the idea that gay marriage presents some demonstrable harm to society, and government can regulate such things in the public interest. It's really not hard to make conservatives turn purple when they toss this line at you; "So the government should ban things that could be argued to harm society. Like giant sodas? Guns? Violent movies? I thought you guys were against the nanny state."

Unless they're willing to take the football and run with it on that point, proudly championing the idea that government exists to criminalize that which might cause harm, they're really out of ammo in this fight. That's not to say that the Supreme Court will rule against them – Scalia, Thomas, and Kennedy have a history of basically writing editorials as opinions on this issue, and who knows what Appeals to Tradition they will cite this time. But that's pretty much all they have left. Religious arguments. Moral arguments. Appeals to tradition and public opinion (which is quickly realigning against them on this issue). As far as their ability to build an actual case against legalizing gay marriage, this is shaping up to be a spectacle of mediocrity. They might be out of gas, finally.

I have always considered and continue to consider gay marriage a Full Faith and Credit Clause issue; if one state issues a civil license, the Constitution plainly states that it is the obligation of other states to honor it. Your Vermont drivers' license is valid in Oklahoma, and so is your New York marriage license. The legal principle at work there changes not one bit when a state redefines marriage. Every state, for example, has different rules about the age at which people can marry without parental consent. Marriage is something people made up that governments see an interest in making an enforceable, legally binding contract. Its definition has changed and will continue to change. That we even have to waste time debating this is indicative of how thoroughly convinced religious conservatives are that their beliefs and the law are one and the same.

Be Sociable, Share!

36 Responses to “PANIC ROOM”

  1. Quaestor Says:

    You are exactly right.

  2. Crackity Jones Says:

    Full Faith and Credit Clause

    "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof."

    Note well the last sentence. Congress can decide how full and how faithful credit must be (hence section 2 of DOMA is constitutional, if only under a full faith and credit analysis).

    Other than that, I am in full agreement. I know Roberts wants to be on the winning side of history, and this case does not really implicate his shameless corporatist proclivities. Fingers crossed.

  3. Crackity Jones Says:

    Actually the text itself does not really illustrate the point, but jurisprudence in that area does not really support the idea of ff&c here, much as I might wish otherwise. I could cite a string of cases, but it's easily googled.

  4. J. Dryden Says:

    Most arguments against gay marriage are, on their face, without merit in a state in which there can be no *explicit* citation of religious authority/doctrine in constructing a case. Or, to put it another way, once the bigots walk into a courtroom, they've got nothing but "Um…because…tradition?" That such arguments have be widely and thoroughly discredited at all levels of the judiciary (Scalia's hilarious dissents aside) pretty much puts them behind the eight-ball.

    Because it's the "demonstrable harm" aspect (which you rightly identify as key) that leads them inexorably to the *real* source of their objection to gay marriage: "Ew." That's it. That's all there is: "Ew." It's immature, it's inarticulate, and it hurts large numbers of people who just want the same benefits (not to mention the same dignities) afforded to all the other consenting adults in the country. "Ew." It's not a whole lot to hang a piece of legislation on. And it's why they'll eventually lose, because day by day, week by week, more and more people are exposed to the sight of two men kissing so that it becomes just another public display of affection, no more or less aggravating than when straight couples do it. After enough time, "Ew" becomes "Meh," and then the rallies turn into six guys in over-stretched tee-shirts, four of whom are there to prove to their church group that "I ain't gay."

    I particularly love it when the bigots pull the old "What am I supposed to tell my children" line in this debate. Where is the progressive voice to answer "Let me get this straight–you want *me* to tell *you* how to educate *your* child? Is that on the table now? You really want to go there? Because if that's so, let me just say: Goody."

    The court will hear this one soon, and when it does, we can expect Kennedy–who let's recall has been *way* to the fore on the subject of the elimination of state restrictions on gay conduct–to swing the vote, and I wouldn't put it past Roberts to vote with the majority. Which means we can look forward to a number of wonderful things:

    1. The further enfranchisement of men and women who have been cruelly oppressed for, roughly speaking, ever. (Everything else after this is just icing.)

    2. Scalia's dissent. If Lawrence v. Texas was any indication, this one is gonna be *awesome.* Like "sew it into an ironic sampler" awesome.

    3. Gay weddings. You will literally be unable to not have a great time at a gay wedding. The music, the booze, the food, the company–I don't care if it's a stereotype, these people goddamned know how to throw a party.

    Of course, there will also be lesbian divorces, and if that thought doesn't send a chill down your spine, well, you've never been witness to the end of a long-term lesbian relationship. That shit is gonna get ugly, and family lawyers are gonna get rich…

  5. Ed W. Says:

    My wife and I produced an unplanned and unintended offspring. I love the little moppet, but her existence doesn't mean gay couples shouldn't be able to visit each other in the hospital.

    I am a bit surprised, because Paul Clement is supposed to be one of the less hack-y of the Republican lawyers, at least with respect to his ability to develop and present an argument. But this makes no sense, on any level. I am too lazy/sleepy to track down the brief, but maybe he let a random Liberty University Law School graduate write it, gave a hearty "eh, good enough", signed off on it, and submitted his bill.

  6. Middle Seaman Says:

    Clement is a sharp lawyer and I'll stay away from his argument. It's also not the issue.

    It's popular to say about the Republicans: "These are people scrambling for something to plug the leak while their boat sinks." Is it really sinking with close to 50% of the votes nationally?

    We want to believe that the attempt to return the country to pre-Lincoln days looks terrible. About 50% of us don't think so.

  7. Senescent Says:

    You extend your Full Faith and Credit Clause enthusiasm to concealed carry permits?

  8. CAGary Says:

    The inescapable fact about gay marriage, if you are REALLY a "strict constructionist", is that, absent religious considerations prohibited by the first amendment, the state's interest in marriage is strictly a property contract. It simplifies the issues of asset transfer after death, end of life issues, etc. Drop THAT concept on your conservative friends/relatives and watch the exploding heads.

    Selah.

  9. c u n d gulag Says:

    Senescent,
    Sure, when you tell us what "well organized militia" you're a part of!
    And, I don't mean your pals in "The Wolverines," either.

  10. c u n d gulag Says:

    Well, considering it was the "tradition" to keep slaves and women as chattel in many parts of the world, and we've mostly gotten over that recently – or, at least most of us – then we can also get over that marriage has to be between a man and a woman.

    No one is going to force churches to perform gay marriages unless they want to.

    The idea is that people who decide to partner together, agreeing to a lifetime committment, regardless of sex, have the same legal rights as heterosexual couples have, and always have had – the "tradition" of owning other human beings being excluded, of course.

    And if you think that homosexuals marrying and raising children will somehow affect your marriage and family, may I suggest that you have more problems in your marriage and family than you might suspect.

    What ever happened to the old-school Conservatives I once knew, who believed in 'live, and let live?"
    Oh yeah – they invited the Dominionist Evangelical Christians, with their Manichean views, into their tent, and "live, and let live," became "live by MY rules, or die – you Satan-worshipping Heathen, you!!! Die with large festering boils – DIE! DIE!! DIE!!!"

  11. akaBruno Says:

    Paul D. Clement, a solicitor general under President George W. Bush and now representing House Republicans, argued that marriage should be only for men and women because only straight couples can 'produce unplanned and unintended offspring."

    This one is always my favorite, as it precludes any post-menopausal female from marrying, as she cannot produce offspring.

  12. RosiesDad Says:

    Religious argument? check
    Tradition argument? check
    Moral argument? Not really. The moral argument against gay marriage devolves into a religious/tradition argument. But the moral position–that two people who love each other ought to be able, if so inclined, to codify their commitment under the law–stands clearly in favor of marriage equality.

    Beyond that, because public opinion is moving rapidly toward acceptance of marriage equality, this fight is essentially over, regardless of what SCOTUS rules. If SCOTUS upholds Prop 8, the setback will be temporary because younger Americans support marriage equality by a large majority. And dinosaurs don't live forever.

  13. Hazy Davy Says:

    It's a damn good thing you explained, afterward, what was meant in that passage. "We can't allow gay marriage, because the resulting society would be different—better, arguably, but different. We do not like change."

    Fact is, GWB and his pals perfected a technique of attacking from weakness. [It was probably encouraged by writings of Lao Tzu or Siegfried Engelmann or one of his other favorite writers...]

    - Your opponent has a purple heart and medals of commendation for his service, while you went AWOL over the skies of Texas? Attack him for being weak on the military.
    - You were raised the wealthy son of a New England family, after which your family bought you degrees from a couple of Ivy League schools? Criticize your opponent for being a wealthy, Ivy League elitist.
    - The single worst attack on American soil occurred on your watch, after you were warned by the CIA (but chose to listen to some "think tank" instead). Criticize your opponents for not appreciating "terrorist threats" as much as you.

    So, when this really is a matter of "civil rights", and when it's PLAINLY OBVIOUS to anyone (who doesn't hate gay people) that the right thing to do is to not restrict those rights, it's not a surprise that the Bushies would argue "oh, you HATE marriage. Oh, you want to weaken our heterosexual marriage." But holy moly, this is a new level of bullshit. "Studies have shown that heterosexuals can have unintended children, placing a burden on society. So it's clear that homosexuality as a whole should be abolished, since they can never be the hetero equal." WTF is that?

    [I'm curious about the FFaC issue you raise. What sort of limitations are there on that?]

  14. Sarah Says:

    There's still all the crazy weather resulting from climate change. I saw on Twitter where they were actually making the suggestion that the extreme temperature swings in the US, as well as Sandy in New England and the fires in Australia, are the result of God's wrath over gay rights and gay marriage. Yes, really. I'm an ex-Catholic and I remember being afraid that I would turn into a pillar of salt for supporting abortion rights. The asshole in Rome already has said that Catholics who voted for Obama (as well as Catholic politicians who come down on the liberal side of progressive issues) should be denied communion. There are plenty of people who take this seriously. There were plenty of people who believed the world would end last month, too.

  15. Barry Says:

    "I am a bit surprised, because Paul Clement is supposed to be one of the less hack-y of the Republican lawyers, at least with respect to his ability to develop and present an argument. But this makes no sense, on any level. I am too lazy/sleepy to track down the brief, but maybe he let a random Liberty University Law School graduate write it, gave a hearty "eh, good enough", signed off on it, and submitted his bill."

    Well, that shows us what the lower bound for hackiness of the right's lawyers is (somewhere between 'shameless hack' and 'OMG even other hacks are embarrassed!').

  16. Tim H. Says:

    One of the weird things about fundies is they claim to believe in a judgement day and divine punishment of sinners, so gay folks, by definition, would be an SEP, unless being coercive. Are the fundies afraid hell isn't bad enough? Do they loathe mercy?

  17. c u n d gulag Says:

    Having read that legal hash again, I had another thought.

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

    Uhm…
    Then, shouldn’t Conservatives be FOR gay marriage, since it takes all of that “advance planning?” (They make deciding to have a child sound like planning for retirement).
    Conservative are all about “advanced planning,” arent they? Like estate and retirement planning, voter suppression, and changing the Electoral College rules only in certain states.
    You don’t just wake up one morning, and say, “Hey! Let me suppress that black couple down the block’s right to vote today – it’s Election Day!”

    And no “unplanned and unintended offspring,” means, no, or less, abortions – amarite?

    With all of that “advanced planning,” Gay marriage sounds very Conservative to me.

  18. Amused Says:

    I'm chalking this up to a mix-up in brief. That "argument" seems like one that conservatives would employ in a fight against contraception. You know, how the pill has reduced the number of unintended pregnancies, and as a result, civilization is going to collapse.

  19. Purple Platypus Says:

    This may just be c u n d gulag's point again, but I don't follow the logic of this argument at all. Unplanned kids are a problem… so we should ban something that, by Clement's own argument, *DOESN'T* cause them? That makes no sense.

    I don't just mean it's a bad argument – that would mean I understood how the logic was supposed to go, but found fault with it. In this case I simply can't understand what the argument is even supposed to *be* – I can't even get to the point where I could critique it, in the same way as if it just said "gooble gooble bark bark".

    What am I missing here?

  20. ladiesbane Says:

    So, are they arguing that straight marriages should not be allowed if the couple is not comprised of a fertile male and female? Presumably who are biologically compatible and who intend to have children?

    I don't consider this a primarily FF&C issue. To me, it's all Brown versus BoE and Loving versus Virginia. If two free adult citizens, possessed of judicial capacity, can marry as man and woman, they must be allowed to marry as man and man, or woman and woman as well. Same or different sex is no more a meaningful bar to legal union than same or different race.

    Race isn't binary and neither is sex; and neither should be a legal bar to civil equality with members of the majority culture. If the straights get to do it, the gays do, too. Period.

  21. Hazy Davy Says:

    For PP: http://hermiene.net/essays-trans/relativity_of_wrong.html

  22. Quaestor Says:

    If you have a good argument for something, you should use it. If all you have for an argument makes zero sense*, maybe your position really isn't tenable.

    *Of course, they can't say their real reason: "We believe in a deity who hates gay people and we think everyone in the country should live by our religion's rules."

  23. Bitter Scribe Says:

    Oh, don't worry about the conservatives. They'll just scream about "activist judges" for a few minutes and they'll be fine. Well, fine by their standards.

  24. Pat Says:

    I'm going to pause while you re-read that until you can figure out what in the hell they're even arguing.

    It's that the only purpose of institutional marriage is to give legal consequence to the shotgun wedding. What's the mystery?

  25. Purple Platypus Says:

    "I'm going to pause while you re-read that until you can figure out what in the hell they're even arguing.

    It's that the only purpose of institutional marriage is to give legal consequence to the shotgun wedding. What's the mystery?"

    Setting aside the obvious question – "why would anyone, *especially* conservatives, think that?" – I'll raise the slightly less obvious objection that it doesn't seem like this can be the point, because the last paragraph acknowledges that this isn't what actually happens in practise.

  26. Purple Platypus Says:

    Hazy Davy, this may be mostly a disagreement about terminology, but I'd say the same thing about most of Asimov's examples of "more wrong" responses that I would about this argument – that they make so little sense that even calling them "wrong" is more credit than they warrant, because it implies that there's content there to disagree with.

  27. Pat Says:

    Sorry, need to put on my lawyer hat:

    I have always considered and continue to consider gay marriage a Full Faith and Credit Clause issue; if one state issues a civil license, the Constitution plainly states that it is the obligation of other states to honor it.

    Except there is a well-known exception for licenses a state would not have issued for reasons of public policy. If Utah and Colorado disagree on whether first cousins may marry, as a f'rinstance, or 17-year-olds, then each is entitled to reject the contrary decision of the other.

    (This is in contrast to the procedural question of whether a priest or riverboat captain or only a justice of the peace may perform the ceremony, or how many witnesses are required. That does not give other states the right to reexamine the process by which the license was granted, if the state could have granted a license with similar content. I couldn't parallel park in New York City to save my life, but my original license was granted in Colorado, so I don't have to re-take the test.)

    Gay marriage is pretty clearly a core definitional case of what the public-policy exemption is for. This has two potential implications: One, that the provision of DOMA relating to out-of-state marriages was an unconstitutional attempt by Congress to interpret a constitutional clause further than the Court was willing to do, or at least was unnecessary in light of the Court interpretation, and two, for the Court to compel Florida to recognize Mass. gay marriages, it would be logically necessary for the Court first to recognize a constitutional right to gay marriage.

    Now, since we've mentioned drivers' licenses, I should admit I don't exactly know why those are valid state-to-state. They have a pretty clear impact on interstate commerce, so this rule may arise out of the jurisprudence of the Dormant Commerce Clause. But my suspicion is that no state particularly ever tried to take away a license granted by another state. We are not a nation averse to driving, after all.

  28. Bill Says:

    I read that initial "briefs filed" statement as "briefs filled" and was certain there was a pant-shitting joke just 'round the bend…

  29. Pat Says:

    @Purple Platypus: I actually neglected to notice my joke was precisely the headline in the linked story (always a good idea to read before commenting), but yeah, I didn't mean to contradict Ed's point that no one making the case actually does think this.

    Which points to the following irony: The people who claim they are making the last defense of marriage are actually making an unintended but kind of profound case against marriage. And that case is surprisingly tenable! My brief experiences in Scandinavia have left me with tons of examples of people, both men and women, who don't see any point to staying with one romantic partner for one's whole life, because they already have secure social institutions.

  30. Andrew Laurence Says:

    Your out-of-state driver license is valid in New York, but if you try to drive in New York City when you're < 18 years of age, even if you hold a valid license from another state or another part of New York State, you're breaking the law. So a state could, say, ban gay sex while still considering gay people with a marriage license from another state legally married.

  31. Hazy Davy Says:

    PP: http://en.wikipedia.org/wiki/Not_even_wrong <-how about this?

  32. purpleplatypus Says:

    @ Hazy Davy, that's much closer.

  33. jon Says:

    Lesbians sure take a lot of planning to have babies. First, they have to plan who will get pregnant. Then, plan time and expenses. There's a third part where some guy either has sex with or gives up some baby batter. But that can be arranged in a two-minute conversation before closing time at any bar in the country.

  34. albanaeon Says:

    I'm guessing that Clements is going for a Chewbacca Defense. It's after all, there best shot at giving Scalia some sort of cover for whatever pan-dimensional rationale he'll give for rejecting same-sex marriage.

  35. jon Says:

    Sad thing is, the Chewbacca Defense worked. Yeah, it was in a fictional world that mocks our own in a twisted way. But it worked.

    The Underpants Gnomes are profiting somehow.