Eagle Forum Legislative Alerts

Wednesday, March 06, 2013

Obama's DoJ anti-marriage brief

Now that Pres. Barack Obama has flip-flopped on same-sex marriage, his Dept. of Justice Supreme Court brief explicitly disavowed child-rearing as being a purpose of marriage:
The House Report identified “responsible procrea-tion and child-rearing” not as a separate rationale for Section 3 of DOMA, but as a basis for Congress’s general interest in defending “the institution of tradi-tional, heterosexual marriage.” E.g., House Report 14 (“Were it not for the possibility of begetting children inherent in heterosexual unions, society would have no particular interest in encouraging citizens to come to-gether in a committed relationship.”); see also BLAG Br. 44-49. Even accepting this blinkered understand-ing of the moral and emotional foundations of mar-riage, see Turner v. Safley, 482 U.S. 78, 95-96 (1987), Section 3 does not substantially further any such in-terest.
Got that? For millennia society has recognized marriage in order to protect the resulting children, but not the US DoJ calls this a "blinkered understand-ing of the moral and emotional foundations of mar-riage".

People often get married for emotional reasons. People do a lot of things for emotional reasons. Congress usually does not pass laws trying to regulate how people emotionally relate to each other. Here is the more complete quote from that House Report:
And from this nexus between marriage and children springs the
true source of society’s interest in safeguarding the institution of marriage:
Simply defined, marriage is a relationship within which the community socially approves and encourages sexual intercourse and the birth of children. It is society’s way of signaling to would-be parents that their long-term relationship is socially important—a public concern, not simply a private affair.
That, then, is why we have marriage laws. Were it not for the possibility of begetting children inherent in heterosexual unions, society would have no particular interest in encouraging citizens to come together in a committed relationship. But because America, like nearly every known human society, is concerned about its children, our government has a special obligation to ensure that we preserve and protect the institution of marriage.
Turner v. Safley (no relation) was a 1987 US Supreme Court case that said that prisoners could marry to get welfare or tax benefits, even if they could not consummate the marriage until after they got out of prison:
Missouri Division of Corrections. ... The second regulation permits an inmate to marry only with the prison superintendent's permission, which can be given only when there are "compelling reasons" to do so. Testimony indicated that generally only a pregnancy or the birth of an illegitimate child would be considered "compelling."

The right to marry, like many other rights, is subject to substantial restrictions as a result of incarceration. Many important attributes of marriage remain, however, after taking into account the limitations imposed by prison life. First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated. Finally, marital status often is a precondition to the receipt of government benefits (e.g., Social Security benefits), property rights (e.g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e.g., legitimation of children born out of wedlock). These incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by the fact of confinement or the pursuit of legitimate corrections goals.

Taken together, we conclude that these remaining elements are sufficient to form a constitutionally protected marital relationship in the prison context.
The DoJ takes this opinion as a precedent for the government creating a right to marriage without a child-rearing purpose.
Against this weight of expert authority, BLAG offers (Br. 48) only what it calls the “[c]ommon sense” notion that children benefit more from oppo-site-sex parents than from same-sex parents. That is (at best) uninformed speculation, and cannot satisfy heightened scrutiny. Consequently, even assuming Section 3 had the effect of encouraging opposite-sex parenting at the expense of same-sex parenting (but see pp. 43-44, infra), there would be no adequate in-terest in doing so.
No it is not uninformed speculation. It has been conventional wisdom for millennia, and is supported by the latest social science research. Nearly every study shows that kids do best with their natural parents, and that moms and dads have differences in personality types and parenting styles that are beneficial to kids. Many adoptive, single, and gay parents do an admirable job of child-rearing, but the government has a legitimate interest in promoting what has proved to work best. For more on the research, see Mark Regnerus and this essay by Terence P. Jeffrey.

If the Supreme Court adopts the Obama DoJ view, there could be ramifications far beyond the LGBTQIA community. It could become unconstitutional for a government marriage policy to have traditional child-rearing considerations as its major purpose.

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