Marriage should be limited to unions of a man and a woman because they alone can “produce unplanned and unintended offspring,” opponents of gay marriage have told the Supreme Court.

By contrast, when same-sex couples decide to have children, “substantial advance planning is required,” said Paul D. Clement, a lawyer for House Republicans.

In their opening briefs, this was the reasoning offered by both Clement in defense of Section 3 of the “Defense of Marriage” Act and Charles Cooper in defense of Prop 8: Because opposite sex couples are burdened with the “unique social difficulty” of frequently producing children by accident, and same sex couples “don’t present a threat of irresponsible procreation,” same sex couples and their children should be excluded from the security and benefits of marriage. This is what anti-equality American taxpayers are getting for $3 million in public funds?

It’s not even a novel argument. We christened it the “oops argument” back in 2006, when the Court of Appeals in New York suggested it as a way for the legislature to address the issue in a state which even then boasted a 53% majority in favor of equality. We interpreted it as a sly taunt on the part of the Court.

In other words, intentionality and family planning should be punished, while irresponsibility and impulsive behavior should be rewarded with government benefits?

It seems to me that this logic is faulty. If straight couples are “all too often” accidentally having children that they didn’t plan to have, isn’t the answer education and better access to birth control? After all, there are so many children in need of adoptive homes in the first place because of the impulsive behavior of straight couples. Gay people are hardly, as the Court points out, responsible for creating this situation. It is beyond irrational to deliberately handicap the gay families that step up to provide homes for some of these unplanned children.

Besides, this is not a zero-sum game. The supply of stability is not finite. Facilitating stability in same sex relationships doesn’t take stability away from different sex relationships, and nowhere does the Court suggest a mechanism by which it would.

I’m guessing that this unintentionally amusing argument is the result of realizing what is likely to happen when naked animus is revealed to be the motive for discrimination against gay and lesbian couples. It’s all that was left. And did anyone else notice the “peculiar syncrony of message and method and timing”? Uncanny.

The Clement brief in the Windsor (DOMA) case is here.
The Cooper brief in the Perry (Prop 8) case is here.

Crossposted at Equality Loudoun.