The two state officials appealing Virginia’s marriage equality case have filed their opening briefs to the Fourth Circuit, rehashing many of the same arguments that were rejected by the district court judge last month. Both clerks saw fit to highlight a particularly unusual argument to justify not allowing same-sex couples to marry: one of marriage’s purposes is to encourage man-woman couples to marry if they accidentally get pregnant.
George E. Schaefer, III, Clerk of Court for Norfolk Circuit Court, explained this argument by simultaneously arguing that society will die out because opposite-sex couples will be less inclined to procreate:
However, when the Virginia General Assembly passed the code sections and constitutional amendment challenged by Plaintiffs, they had at least some basis to encourage the “traditional” definition of marriage as being between one man and one woman. For example, promoting procreation by opposite-sex couples within a marital relationship has a long history and tradition throughout society. Without procreation, we would eventually disappear as a species.
Another often stated reason for defining marriage as between one man and one woman is to promote rearing of children in a household where a mother and father are both present. Only opposite sex couples have the ability to have an unintentional pregnancy, and the legislative body could legitimately want to steer that potential into a marital relationship. Other Federal courts have found just such reasoning to be legitimate and to pass rational basis scrutiny, and this Court should as well.
Prince William County Clerk of Circuit Court Michèle B. McQuigg, who is represented by the anti-LGBT Alliance Defending Freedom, expounded on this argument in her brief:
The interests that Virginia furthers through this channeling function are at least threefold: (1) providing stability to the types of relationships that result in unplanned pregnancies, thereby avoiding or diminishing the negative outcomes often associated with unintended children; (2) encouraging the rearing of children by both their mother and their father; and (3) encouraging men to commit to the mothers of their children and jointly raise the children they beget.
The brief notes that nearly half of all pregnancies, including 70 percent of pregnancies that occur outside of marriage, are unintended. This poses a significant risk to the children, the brief argues, which is who the benefits of marriage are designed to protect. Thus, since unintended pregnancies are “never the product of same-sex relationships,” marriage does not serve the same incentivizing purpose for same-sex couples. Later, the brief clarifies that the purpose of marriage is “prophylactic rather than prescriptive,” to promote stable families “if any children are born.”
Similarly odd claims about the consequences for different-sex couples have been made in past cases. For example, proponents of California’s Proposition 8 argued that marriage dissuades older men from having sex outside a marriage with a younger woman because of the potential to get her pregnant, a claim the Family Research Council defended. Without the risk of accidental pregnancy outside of marriage, they argue, the institution doesn’t provide same-sex couples with the same stability.
Even though it is true that children (from unintended pregnancies or otherwise) benefit when their parents are married, it’s not a point that makes any sense in an argument against same-sex couples marrying. They may never have unintentional pregnancies, but they most definitely have intentional pregnancies, and they also adopt and foster children. It’s estimated that well over 2,000 same-sex couples in Virginia have started families. Marriage equality would both increase the number of intended pregnancies and the likelihood that children are raised in stable families.
In other words, opponents of marriage equality have demonstrated that same-sex couples are more likely to be responsible when raising children while highlighting how those children would benefit if their parents could marry.
(HT: Kathleen Perrin)