Gays Can’t Marry Because ... They Plan Babies?

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I mean, you can't just stand up in court and say, "I got nothin'" Photo: Charles Dharapak/AP

If you’re a lawmaker who wants to ban gay marriage, you can come up with any reason you want. You can say gay people are going to hell, or that they make you feel icky, or that you’re okay with gays but not the marrying kind of gays, or that you oppose gay marriage because you just do. (The ubiquitous line “I believe marriage is between a man and a woman” is a version of that last one — you believe it because you believe it.)

But if you’re a lawyer defending a gay-marriage ban in court, you need an actual legal reason for your position. This was the unenviable spot in which Paul Clement found himself recently, defending the House Republican opposition to gay marriage before the Supreme Court. Clement developed a reputation as a right-wing superlawyer for his work in transforming the legal challenge against Obamacare from a no-hope libertarian crusade into very, very nearly the law of the land. It’s a measure of the hopeless illogic of the case against gay marriage rather than Clement’s lack of skill that the best legal case he could come up with was … well, it wasn’t good:

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.

So the problem here is that you can’t discriminate against people without good cause. You need some distinction to justify it. The traditional distinction that straight people raise kids doesn’t work, since gay couples can do that too. So Clement fell back on arguing that only straight couples have unplanned children. Gay couples don’t get drunk and wake up pregnant. It is, to say the least, ironic that after years of using alleged gay social irresponsibility as a rationale for discrimination against gays, heterosexual irresponsibility is now a rationale for discrimination against gays.

It does make sense in the limited way of thinking that, okay, you might want marriage as a way to force the two straight people facing a sudden pregnancy to get married and raise the baby together. But this is a reason to deny marriage to gays because … there’s only so much marriage to go around? The gays will sign up all the best caterers? Clement has an argument for straight marriage, but how it translates to preventing gay marriage, I can’t fathom.

Clement further insists that we should not view gays as a class of people who might require protection from discrimination. They’re oh so powerful:

Gays and lesbians are one of the most influential, best-connected, best-funded and best-organized interest groups in modern politics, and have attained more legislative victories, political power and popular favor in less time than virtually any other group in American history.

It is true that the trajectory of gay political influence is high. Gays have increased their political standing quite a bit since they were total pariahs. By the same token, African-Americans were a huge legislative powerhouse in the sixties, gaining wide swaths of new federal rights. But getting some politicians to agree to stop the government from stomping on your rights is not really the same thing as being disproportionately influential.