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

Then, in a telling twist of fate, the government cited the single most conservative judge on the U.S. Supreme Court to demonstrate that the ruling in the Lawrence v. Texas sodomy case renders procreation impotent as a basis for restricting marriage to straight couples.

From the brief: "Furthermore, in Lawrence v. Texas , 539 U.S. 558, 605 (2003), Justice [Antonin] Scalia acknowledged in his dissent that encouraging procreation would not be a rational basis for limiting marriage to opposite-sex couples under the reasoning of the Lawrence majority opinion -- which, of course, is the prevailing law -- because 'the sterile and the elderly are allowed to marry.' For these reasons, the United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing and is therefore not relying upon any such interests to defend DOMA's constitutionality."

Of course, none of this amounts to a successful Supreme Court decision guaranteeing the right of same-sex couples to marriage. But it's safe to say that the U.S. government has now discredited the logic of Justice Smith's opinion and all those like it.

I know there's been a lot of gnashing of teeth among LGBT activists about the Olson/Boies suit and whether the timing is right for a case that could land in a Supreme Court that doesn't seem particularly LGBT-friendly, whether the LGBT groups should have been able to join the suit, etc.

While I have not taken sides in that debate, I will say that Olson, as a true-blue conservative lawyer, is the perfectly improbable ally who may well prove singularly persuasive in making the case for same-sex marriage. He has also won 44 of the 55 cases he's argued in front of the Supreme Court. I like those odds.

And I, for one, don't want to wait an entire generation for that New York decision to go from being simply flawed to being nothing more than a remnant of a time long since passed.

Tags: Politics

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