Is Paul Clement Trying to Throw the DOMA Case?

Paul Clement talks to the news media outside the U.S. Supreme Court on the third day of oral arguements over the constitutionality of the Affordable Care Act March 28, 2012 in Washington, DC.

Photo by Chip Somodevilla/Getty Images

Probably not — there’s not enough money at stake here to make a Leopold-and-Bloom operation worth the risk. But his brief in United States v. Windsor (he’s the attorney for House Republicans) is a cornucopia of unconvincing arguments. Ian Millhiser spotted this one first:

In short, gays and lesbians are one of the most influential, best-connected, best-funded, and best-organized interest groups in modern politics, and have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history.

As the saying goes, It Gets Better. Later in the decision, Clement cites one of Congress’s original rationales for DOMA.

Congress recognized the basic biological fact that only a man and a woman can beget a child together without advance planning, which means that opposite-sex couples have a unique tendency to produce unplanned and unintended offspring.  Congress sought to encourage the raising of such children by both their biological parents in a stable family structure.

That’s what Congress said. Clement takes it further.

It is no exaggeration to say that the institution of marriage was a direct response to the unique tendency of opposite-sex relationships to produce unplanned and unintended offspring. Although much has changed over the years, the biological fact that opposite-sex relationships have a unique tendency to produce unplanned and unintended offspring has not.  While medical advances, and the amendment of adoption laws through the democratic process, have made it possible for same-sex couples to raise children, substantial advance planning is required. Only opposite-sex relationships have the tendency to produce children without such advance planning (indeed, especially without advance planning). 

Clement does not specify what “advance planning” means. But one of the ways gay couples find children to raise is by adopting them — adopting children who are the unintended product of opposite-sex relationships. In all seriousness, did no one proofread this?