Today in his National Review column titled This Day in Liberal Judicial Activism:
2009—Purporting to be carrying out its duty to defend the Defense of Marriage Act, the Obama administration’s Department of Justice instead sabotages that law. Abandoning strong arguments that had been successful in previous litigation, DOJ asserts in a brief that it “does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing.” As one supporter of same-sex marriage puts it (emphasis added):That “one supporter” by the way was Dale Carpenter. For the most part Whelan's massive sulk is true (link to the brief). However, while he is correct that some state courts relied upon procreation and child rearing to sustain marriage discrimination, as was their intent, the arguments never made sense. They didn't make any sense then and they do not make any sense now — unless one accepts the teachings of the Church without intellectual challenge.
“This new position is a gift to the gay-marriage movement, since it was not necessary to support the government’s position. It will be cited by litigants in state and federal litigation, and will no doubt make its way into judicial opinions. Indeed, some state court decisions have relied very heavily on procreation and child-rearing rationales to reject SSM [same-sex marriage] claims. The DOJ is helping knock out a leg from under the opposition to gay marriage.”
In spite of the decision by the Department of Justice, these arguments were posited in all of the federal litigation leading up to United States v. Windsor through, and including, the decision in Obergefell. Whelan forgets, or fails to mention, that Congress intervened in Windsor and Pederson v. OPM. The Bipartisan Legal Advisory Group (BLAG), represented by Paul Clement, vigorously defended DOMA starting in April, 2011.
With respect to child rearing, gay couples were already raising hundreds of thousands of children. Even seven years ago the research demonstrated that the children raised by gay couples were as healthy, happy and successful as the children of opposite sex couples. When their parents were unable to marry those children were denied many benefits including the security and comfort of married parents.
Procreation? The argument went that gays should not be able to marry because they cannot procreate. While Ed Whelan and the Church might believe that to be true, procreation has never been the purpose for marriage. I always asserted that the simple purpose of marriage was to create a marital estate. Others have correctly argued that the purpose of marriage is to create a commitment for spouses and kids. There are other reasons and they all can be logically defended. And they were.
The obvious retort was always that based on that “logic” older couples and couples unable or unwilling to crank out kids should not be permitted to marry. The argument was absurd per se.
Ed Whelan was resistant to secular logic. Some of the positions of the Catholic Church (which represents what Whelan believes, emphasis added) were, and are:
- “The homosexual inclination is however 'objectively disordered'”
- “Allowing children to be adopted by persons living in such unions would actually mean doing violence to these children”
- “The inevitable consequence of legal recognition of homosexual unions would be the redefinition of marriage, which would become, in its legal status, an institution devoid of essential reference to factors linked to heterosexuality; for example, procreation and raising children.”
- “When legislation in favour of the recognition of homosexual unions is proposed for the first time in a legislative assembly, the Catholic law-maker has a moral duty to express his opposition clearly and publicly and to vote against it. To vote in favour of a law so harmful to the common good is gravely immoral.”
- “The Church teaches that respect for homosexual persons cannot lead in any way to approval of homosexual behaviour or to legal recognition of homosexual unions.”