View From Washington: Jurisprudence

Just three years since New York's high court used procreation as a reason to block gays from marrying, the U.S. government has begun to dismantle that argument.

BY Kerry Eleveld

August 21 2009 12:00 AM ET

The next day, the argument ran through my head on an endless loop and I kept thinking that for years I had been duped into believing that judges -- and especially high court justices -- were the cream of the intellectual crop.

Legal scholar Vincent Bonventre told me that day: "Within the next generation, the court will recognize this as being an embarrassment to its jurisprudence -- not only the result, but the whole opinion and its reasoning."

Well, this week we got a new brief from the U.S. Department of Justice in the Smelt v. United States case that challenges the constitutionality of the Defense of Marriage Act (yes, the same case that fired up a caldron of LGBT fury when DOJ filed its first brief a couple months ago).

While the Justice Department is still defending the law as constitutional (many argue that DOMA violates same-sex couples' rights to due process and equal protection), it has made a number of significant concessions -- one of the most important being that procreation and child-rearing do not provide a legitimate rationale for excluding same-sex couples from the institution of marriage.

The brief noted that every credible organization that studies child development -- the American Academy of Pediatrics, the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the American Medical Association, and the Child Welfare League of America -- has opposed placing restrictions on lesbian and gay parenting "because they concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents."

Tags: Politics

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