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Maggie Gallagher Weighs In (on DOMA Brief)

In my post lauding the Obama Administration for plainly stating, in its latest filing in the Defense of Marriage Act (DOMA”) case, that “the United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing,” I predicted “eruption of the right-wing volcanos.”

And so has it come to pass, with Maggie Gallagher of the National Organization for Marriage (creators of the unintentionally hilarous “Gathering Storm” video) leading the charge. In this column, she unleashes a scattershot attack. Like many such unfocused fusillades, though, she misses every mark.

First, she quotes from DOMA’s statement of purposes, apparently in contradiction to the Department of Justice’s abandonment of the procreation and child-rearing arguments: “[C]ivil society has an interest in maintaining and protecting the institution of heterosexual marriage because it has a deep and abiding interest in encouraging responsible procreation and child-rearing .”

But Congress passed DOMA, in large part, because of “a deep and abiding” homophobia. Here’s a sample of statements made during Congressional “debate” over DOMA.

North Carolina Senator Lauch Faircloth: “Same-sex unions do not make strong families.”

Sen. Robert Byrd of West Virginia: “[O]ut of same-sex relationships…emotional bonding oftentimes does not take place….”

Representative Smith of Texas: “[S]ame sex ‘marriages’ demean the fundamental institution of marriage. They legitimize unnatural and immoral behavior.” (Note the single quote around ‘marriage,’ a grammatical move made to suggest that calling same-sex unions marriages is oxymoronic.)

I think that’s enough of that, don’t you?

Even to the extent that Congress wanted to encourage “responsible procreation and child-rearing,” it doesn’t follow that excluding same-sex couples from marriage in any way furthers that goal. Gallagher cites several state supreme court cases (but  not the most recent ones, which she conveniently ignores) that mention “responsible procreation,” and then says that the cases recognize procreation as a — not the — purpose of marriage. A wise (if sneaky) concession, because many couples who can’t or won’t procreate,1 are nonetheless allowed to marry. Think of the elderly, as Scalia did in his surely-by-now-regretted dissent in Lawrence v. Texas.

And even to the extent that supporting procreation is a purpose of marriage, why doesn’t that apply to both straight and gay couples who need the assistance of modern reproductive techniques to do so?

Then, after some further boilerplate blather about “the unions of husbands  and wives” being unique and entitled to special legal rights, Gallagher unleashes her final round of artillery:

Surely there are other ways for those who advocate gay parenting to promote their views without attacking the very idea of the natural family, of the duties of natural parents, or the stubbornly retrograde longing of children to know and be known by, to love and be loved by the mother and father who made them, when possible.

No one is “attacking” anything, unless it’s the opponents of same-sex marriages. All the Obama Administration is saying is that, at last, science, psychology, and the reality of human lives have overrun the assumptions that only one possible setting can lead to good outcomes for children.

And where is she getting her “stubbornly retrograde” (indeed!) notion that kids need to know their biological parents? Sometimes, that’s not such a good idea. And, as she concedes (but doesn’t follow through on), it’s not even always possible for kids to know who their bio parents are. And why does that matter? And what message are we sending to “non-traditional” (including adopted) kids by continuing to defend a marriage regime that pushes them and their families to the perimeter?

I weary of this argument, based on nothing but definition, assumption, and faith in the familiar.

  1. “Procreate! I command you!” “You can’t make me!”
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