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In court, Obama & House attorneys differ over whether kids need a mom & dad
Posted on Aug 9, 2011 | by Michael Foust

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WASHINGTON (BP)--In remarkably different court filings that highlight America's cultural divide on marriage's definition, the U.S. House and the Obama Justice Department have come to opposite conclusions as to whether children need a mother and a father in the home.

At issue is the Defense of Marriage Act, the 1996 law which defines marriage in federal law as between a man and a woman and gives states the option of not recognizing another state's gay "marriages."

In its legal briefs arguing that the law should be upheld, the legal team hired by the U.S. House says DOMA, as it's often called, is naturally tied to procreation and that children benefit from having both a mother and father in the home. The Justice Department has discounted the procreation argument and argued that the gender of parents does not matter.

The view that prevails at the Supreme Court -- which has yet to take up the issue -- could determine the future of gay "marriage" in America.

Gay groups view the law as a major obstacle to redefining marriage nationwide and are hoping the federal courts or Congress overturn it.

The Justice Department is tasked with defending the nation's laws, but President Obama earlier this year ordered the department to stop defending DOMA, forcing the Republican-led House to step in. In at least one legal case, the Justice Department is actually opposing DOMA.

The House team is led by Paul Clement, U.S. solicitor general under President George W. Bush. Clement's team quotes research stating that "the optimal situation for the child is to have both an involved mother and an involved father."

"[T]he experience of a child raised by a man and a woman may differ from that of a child raised by same-sex caregivers," reads the House brief defending DOMA in a U.S. District Court case in New York. The brief asks the court to dismiss the DOMA suit. "The federal courts that have upheld DOMA all have recognized that encouraging child-rearing by a married mother and father is a legitimate governmental interest, and that DOMA furthers that interest.... Congress rationally could conclude that each child will benefit from having a role model of his or her own sex as a parent, and from being exposed within the family to how that parent relates to an adult of the opposite sex."

The brief then affirmingly quotes a 2004 remark by former U.S. Sen. Jim Talent: "One thing that two people of the same sex cannot give children" is "a mom and a dad."

The House attorneys further say that while same-sex couples "may prove capable parents in many other regards, children raised by them inevitably will miss out on one or both of these benefits" -- either having a mother or a father. It further quotes a U.S. representative from 2004 as saying in a mother-father household, each makes a "unique contribution" to a child's well-being.

The House's legal arguments, contrasted with the Justice Department's filings opposing DOMA, provide a dramatic moment in the legal battle over marriage's definition.

The Justice Department filed a brief July 1 in a separate case arguing that the gender of parents does not matter: "There is no sound basis for concluding that same-sex couples who have committed to marriages recognized by state law are anything other than fully capable of responsible parenting and child-rearing." It further said gays have suffered a history of discrimination and that DOMA is driven by prejudice.

Conservative groups are applauding the briefs from Clement and his team.

"They are doing an outstanding job," Holly Carmichael, an attorney with the Alliance Defense Fund, which supports DOMA, told Baptist Press. "They are drawing from the same main argument that the Department of Justice used to make -- responsible procreation, having a mom and a dad, is the best model for children. Those are really the reasons the House enacted DOMA."

Similar to the House, the Justice Department under Presidents Clinton and George W. Bush defended DOMA by using legal arguments tied to procreation and the need for mother-father homes, but the Obama Justice Department -- during the first two years of his administration when it was defending the law -- refused to use that line of reasoning, saying it did not "believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing." Supporters of DOMA were highly critical of the Justice Department's jettisoning of what they said were the most logical and best legal arguments. The House in 1996 had explicitly mentioned procreation and childrearing as part of its reason for passing the law. State courts that have refused to legalize same-sex "marriage" have made similar arguments.

"When you separate this whole question of procreation and parenting from the institution of marriage, you've literally redefined marriage, because that is the primary purpose of marriage," Carmichael said. "And when we make marriage about just what individuals want and completely separate it from children, that has some stunning sociological and philosophical differences."

The House brief also differed from the Justice Department in another significant matter -- whether DOMA should be reviewed under a legal term called "heightened scrutiny" or under another term, "rational basis." The answer could determine DOMA's future. Under heightened scrutiny -- the category promoted by the Justice Department -- courts would view DOMA critically and would place sexual orientation alongside the category of race. But under rational basis -- the category promoted by the House attorneys -- the courts would give DOMA the benefit of the doubt, and lawyers defending DOMA would only have to provide a rational reason behind the law.

At least 10 federal courts have held that laws pertaining to sexual orientation should be viewed under rational basis. No federal appeals court has ruled that sexual orientation is subject to heightened scrutiny.

For heightened scrutiny to apply to gays, a four-part threshold would have to be met. It would have to be proven that homosexuals have suffered a history of discrimination, exhibit immutable characteristics, are a minority or politically powerless, and that the Defense of Marriage Act has no legitimate policy objective. The Justice Department contends that gays meet all four standards.

"Homosexuality has not been proven to be immutable, and actually there's a lot of evidence indicating that people change in their sexual preferences," Carmichael said. "It's also hard to say with a straight face that gays and lesbians don't have political power. That's a tough argument for [the Justice Department] to make, but they're very eager to get that higher level of scrutiny, because then they can get past these responsible procreation [arguments] and obvious physical differences between men and women."
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Michael Foust is associate editor of Baptist Press. Read one of the House's briefs on DOMA at http://www.nylj.com/nylawyer/adgifs/decisions/080311blagmemo.pdf.
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