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DOMA, Section 3. Definition of marriage
    In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.
Excerpted from Scottie Thomaston's article posted on Prop 8 Trial Tracker and Huffington Post.

Indiana, Alabama, Alaska,  Arizona, Colorado, Georgia, Idaho, Kansas, Michigan, Nebraska, Oklahoma, South Carolina, South Dakota, Texas, and Virginia have filed an amicus brief in the Gill case, challenging Section 3 of the Defense of Marriage Act. The states seek to establish "procreation" as the rational basis for marriage and thereby bolster the DOMA definition of marriage and state laws restricting marriage to opposite sex couples.

The case has reached the Supreme Court through petitions for certiorari by the Bipartisan Legal Advisory Group (BLAG) who is defending the law on behalf of House Republicans after the Justice Department decided it would no longer defend Section 3, and through a petition by the Justice Department itself. The state of Massachusetts, whose case is consolidate with Gill at the appellate level, has also filed a petition for certiorari.
The brief is based largely on the argument that “procreation” forms the rational basis for the DOMA and state laws restricting marriage to opposite sex couples.
Arguing that the Supreme Court has held that “[i]he same equal protection principles have generally applied to state and federal laws,” the attorneys write that “if the federal government has no legitimate reason to define for the purpose of federal programs, considerations of tradition or gradualism are unlikely to save state marriage laws—especially those that differentiate between opposite-sex and same-sex unions in name only.” In their view, a decision nullifying the Congressional definition of marriage would necessarily use logic that would lead to the evisceration of state marriage definitions.
Referring to the First Circuit’s holding that Section 3 of DOMA has no demonstrated link to its purported goals of strengthening heterosexual marriage as a “startling conclusion”, the brief says the First Circuit “answered the wrong questions” to reach its decision, because in the states’ view, “the panel below simply needed to ask why Congress sought to incentivize traditional marriages and whether that rationale extends to same-sex couples.” In their view, the case turns on whether there are important differences between same-sex and opposite-sex couples, and they offer the ability to procreate as one important distinction. To the states, the definition of marriage is “based on an understanding that civil marriage recognition arises from the need to encourage biological parents to remain together for the sake of their children.”
The 15 states argue that there is no government interest in promoting marriage  without reference to its procreative purposes, and suggest that as same-sex couples cannot procreate, "meaningful marriage" is thereby restricted to opposite-sex couples.
Marriage creates the social norm “that potentially procreative sexual activity should occur in a long-term, cohabitative relationship.” Quoting Maggie Gallagher, the brief suggests that “society” channels people into opposite-sex marriages for procreation, and that Section 3 of the federal Defense of Marriage furthers that channeling, “Through civil recognition of marriage, society channels sexual desires capable of producing children into stable unions that will raise those children in the circumstances that have proven optimal. See Maggie Gallagher, "What is Marriage For? The Public Purposes of Marriage Law," 62 La. L. Rev. 773, 781-82 (2002); and “[M]arriage’s vital purpose in our societies is not to mandate man/woman procreation but to ameliorate its consequences.” Monte Neil Stewart, Judicial Redefinition of Marriage, 21 Can.J. Fam. L. 11, 47 (2004).”
The states argue that same-sex relationships  are merely “alternatives” to the traditional “model, ” and that this ideal  "does not disparage the suitability of alternative arrangements where non-biological parents have legal responsibility for children."

The states also argue that courts have long held procreation to be a rational basis for traditional marriage. The states argue that Baker v. Nelson controls the outcome of DOMA litigation.

In Baker, the Supreme Court dismissed “for want of a substantial federal question” a case involving a gay couple in Minnesota who sought a marriage license but was denied. Since under the (now repealed) law that required mandatory review of the Minnesota Supreme Court’s Baker decision, the Supreme Court’s dismissal is a decision “on the merits” (at least regarding the precise issues at stake in Baker), the states argue that the question of restricting the definition of marriage to opposite-sex couples was already reached and decided on.-

The states want the Court to grant the petition and intervene in the dispute because, “The failure of the decision below to [articulate a coherent rationale for government recognition of both same-sex and opposite-sex legal marriages]—and indeed of any of the courts invalidating traditional marriage and its benefits to do so—while abnegating one of the most fundamental and enduring civil institutions in American life, justifies this Court’s intervention.”

By this rationale, the government's purpose in defining and supporting "traditional" marriage would be to encourage procreation. Would not this definition of marriage-with-intent-to-procreate as the model of "meaningful marriage" also discourage or disparage unions between, say, post-menopausal women and men, or any opposite sex couples whose purpose was not necessarily procreation? What would be the effect on the government's attitude towards divorce when the parents had children?

As commenters on Thomason's post on Prop 8 Trial Tracker point out, the 15 states are desperately seeking to establish "procreation" as the defining purpose of marriage purely to exclude non-heterosexuals from the Equal Protection clause of the 14th Amendment.

Since the 15 states' legal couselors have put procreation forward as their basis for denying "non-traditional" marriages, let's talk about the other dimensions of "marriage," and the "family" that it establishes. A marriage, in the view of many, is more than procreation. Life partnership, companionship, intimacy, love, a family relationship and all the blessings these conditions confer, are valid reasons to marry. As these things are not contingent on the ability to procreate in heterosexual couples, where's the rationale for not extending the benefits of marriage to same-sex couples?

What does religion say about the purpose of marriage? I have limited knowledge of non Judeo-Christian views. Certainly the Bible contains many passages that define marriage as between a man and a woman only, and in the most patriarchal interpretation possible. However, in Genesis, God's first stated purpose in creating Eve was not for procreation, but because it was not good for Adam to be alone. This was a sound reflection on the part of God in my book. It is not good for any of us to be alone, not all the time, anyway.

The Old Testament also gives ample support to plural marriage and concubinage; the patriarchs Abraham and Jacob and many others accounted as righteous men had plural wives and slave mistresses or concubines.

In the New Testament, St. Paul disparages the institution of marriage itself, saying in 1 Corinthians 7:1-16

It is good for a man not to marry.
Paul defines marriage very negatively, as a preventative measure against sexual immorality, rather than for procreation (let alone to foster the blessings of love, companionship, life partnership, etc.). Paul also warns that "a husband must not divorce his wife." What? Not even when she fails to procreate?

All in all, the Bible is a rather shaky basis for DOMA, Section 3 and the 15 states' amicus brief.


Religious denominations that support same-sex marriage:

    Conservative Judaism
    Unitarian Universalist Association
    Liberal Quakers
    Metropolitan Community Church
    Reconstructionist Judaism
    Reform Judaism
    United Church of Christ (UCC)
    In the  Episcopal Church of the U.S., bishops may decide whether or not to bless same-sex marriages or civil unions in states where legally recognized.

Originally posted to Kossacks for Marriage Equality on Fri Aug 10, 2012 at 07:11 AM PDT.

Also republished by Milk Men And Women and LGBT Kos Community.

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Comment Preferences

  •  Sorry, Grandma (6+ / 0-)

    You can't marry that geezer you think you're in love with, since you're past childbearing years.  No marriage for you -- 15 states and five old men in a court say so.

    Civil disobedience is not our problem. Our problem is civil obedience. --- Howard Zinn

    by Dallasdoc on Fri Aug 10, 2012 at 07:22:11 AM PDT

    •  Santorum would probably tell Grandma (4+ / 0-)
      Recommended by:
      Dave in Northridge, weck, Mannie, Lujane

      that it's the equivalent of marrying one's dog, or a box of blue-tailed skinks. So ixnay.

      Brevity is the soul of wit.

      by revbludge on Fri Aug 10, 2012 at 07:26:18 AM PDT

      [ Parent ]

    •  Like my father did (3+ / 0-)
      Recommended by:
      revbludge, Dave in Northridge, Lujane

      After my mother died, my father remarried. He was in his 70s and the woman whom he married several years older. He said they hoped for 5 good years. They got 8 before she died. They certainly were not going to have children.

      I have several married heterosexual cousins who decided not to have children.

      I know a lot of same sex couples who have children.

      The argument is crap. No longer able, with at least 8 years evidence, to claim marriage equality harms hetero marriage or children or society as a whole, unable to use "god hates fags" (which is their real motivation) argument in civil court, they are digging for something, anything. You know, homos can't breed, they have to recruit.

  •  And they cite Maggie Gallagher (4+ / 0-)
    Recommended by:
    revbludge, weck, Mannie, Lujane

    Amazing.  The Attorneys General of 15 states, including Ken Cuccinelli in Virginia (the poster boy for politically motivated law practice) have pretty much just posted on their Facebook pages "I followed Mike Huckabee to Chick-Fil-A." I suppose they think there's no downside to this.

    Shaky indeed.  Thanks for posting this.

    -7.75, -8.10; All it takes is security in your own civil rights to make you complacent.

    by Dave in Northridge on Fri Aug 10, 2012 at 07:24:32 AM PDT

    •  Yes, what next? If "marriage" is defined by (2+ / 0-)
      Recommended by:
      Dave in Northridge, Lujane

      "procreation" by "a man and a woman" then hadn't these states better institute a legal definition of "a man" and "a woman" which excludes anybody not able, willing, and fully intending to procreate? Men who've had vasectomies, infertile women, and older people as well as teh gays. Otherwise, people fraudulently passing themselves off as "women" and "men" (heterosexual, LGBT, who cares?) will be allowed to marry and then flout God's Imaginary Ordinances by not procreating.

      They want downside, they got it.

      Brevity is the soul of wit.

      by revbludge on Fri Aug 10, 2012 at 08:47:57 AM PDT

      [ Parent ]

  •  This is anti-LGBT, but also War on Women. (3+ / 0-)
    Recommended by:
    thomask, Dave in Northridge, Lujane

    They seek to establish definition of marriage that favors defining women by their procreative function, and the definition of marriage, if carried to its logical conclusion, would indeed bring divorce under new legal scrutiny.

    I think the authors of this brief and its supporters don't want to do away with divorce per se, even thopugh the Bible frowns on it. They want to return the US to a 19th century mode, in which divorce was much harder for women than men to attain, and divorce settlements favored men economically.

    Brevity is the soul of wit.

    by revbludge on Fri Aug 10, 2012 at 07:51:41 AM PDT

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