Just as the Supreme Court is preparing for oral argument regarding the validity under the Equal Protection clause of same-sex marriage restrictions on the 26th (Hollingsworth v. Perry, the ith Circuit case dealing with California Proposition 8) and the 27th (Windsor, the NY same-sex widow's estate tax claim that DOMA is unconstitutional), the American Academic of Pediatrics joined a number of other organizations of experts in family and child welfare to adopt an official policy of endorsing same-sex marriage, for the benefit of children. See Mary Elizabeth Williams, Doctors prescribe a does of marriage equality, Salon.com (Mar. 21, 2013); Catherine Saint Louis, Pediatrics Group Backs Gay Marriage, Saying It Helps Children, New York Times (Mar. 21, 2013), at A18.
The policy statement adds to the considerable weight of data and expert opinion that the primary rationale that Congress relied on to enact the so-called "defense of marriage act" (DOMA)--to encourage and protect traditional marriage and to ensure that children will be in stable family units protected by marriage --does not justify the legislation. That argument, and others, have been put forward by various proponents of DOMA, including the Bipartisan Legal Advisory Group (the BLAG), an advisory group to the House leadership which voted 3-2 (on a party line basis) to advise the House to participate in litigation on DOMA and has intervened in Windsor and other cases. (BLAG does not represent the Congress as a whole, and even the House did not pass a resolution authorizing BLAG to represent it in DOMA legislation under January 2013, too late to actually give BLAG standing to appeal a case to the Supreme Court under traditional "case or controversy" principles.)
First, there is nothing in DOMA that encourages different-sex couples to marry or to have children within marriage. Different-sex couples receive no benefit from DOMA, nor is in-wedlock childbirth privileged by DOMA over out-of-wedlock childbirth.
Second, what DOMA does is not to encourage different sex marriages but rather to penalize same-sex marriage. DOMA singles out same-sex couples to make it more difficult for them to provide the stable, committed relationships that all experts agree is important for children's wellbeing by causing federal law to treat as void same sex marriages that are recognized under state law.
Third, nothing in DOMA even vaguely encourages states to rewrite their laws to favor only different-sex marriages--they are free to recognize same-sex marriages.
Fourth, DOMA in some ways preferentially treats same-sex married couples over the different sex marriage that its proponents claim to be wanting to encourage. Under DOMA, same-sex married couples continue to benefit from the tax laws in some respects that are not open to different-sex married couples (such as the ability to recognize losses on transfers between spouses while maintaining the property within the family unit).
Perhaps the telling argument, though, is the way proponents of DOMA have tried to use procreation--and the fact that only a man and a woman can unite physically to produce a child--as a "natural" justification for their opposition to same-sex couples having the ability to have the same legal protections as different-sex couples. Briefs for proponents of DOMA argue that by not recognizing same-sex marriage for federal law purposes, the government is in some way ensuring that accidental procreation (i.e., unguarded sex that produces a child) will more likely take place within a (different-sex) marriage and the stability that offers. That's wrong on many scores. As noted, there is nothing in DOMA to encourage different-sex couples to marry or to encourage procreation to take place within a (different-sex) marriage: lots of accidental procreation happens outside marriage and will continue to do so. No more takes place within different sex marriage because of DOMA than without it.
Further, those who argue the "accidental procreation" strand of "protect traditional marriage" ignore the real possibility that a partner in a same-sex married couple may be raped, resulting in accidental procreation within that couple. Isn't it much better that a child of rape would be born into a committed, loving, legally protected marital relationship than that it be doomed to the instability and tensions inherent in a society that picks on same-sex couples to treat them as somehow odd for federal purposes only? The Academy is essentially speaking on this issue. Whether orphan and unwanted children are adopted by same-sex married couples or born of a rape or result from a surrogate pregnancy on behalf of the couple, those children will be better off if their parents can marry and have all the securities of that marriage than if they cannot.
Many of the briefs in the Windsor case asking the Supreme Court to uphold DOMA focus on an argument not well made when Congress adopted the law--that Congress was interested in creating a uniform definition of marriage. But DOMA essentially undoes the uniform definition that existed--one that relied on the state law definition (and expected states to give "Full Faith and Credit" to each others' determination when a person moved from one state to another). And the definition DOMA imposes is a spiteful one that appears born out of animus to a group that has historically suffered discrimination in this country, whose identifying characteristic doesn't in any way impair the group members' ability to function in society yet is one that manifests itself in the very context of issues that lead to discrimination, and who is rendered politically powerless to prevent that discrimination. Those are the four factors that support strict scrutiny under the 1985 City of Cleburne case, and suggest that Windsor may have a strong claim, even before this court on which a majority of Justices are Roman Catholic, a religion in the news just this month for a new Pope who has condemned same-sex marriage as being against God's plan.
Statements in the record certainly suggest a strong element of animus towards gays at the time of passage of DOMA. What is good to see is that this is gradually falling away. Bill Clinton, who signed DOMA into law in September 1996, and Hilary, who opposed gay marriage during her campaign for the presidential nomination, have now both come out in support of it. Even Sen. Portman, a conservative Republican, has acknowledged he was wrong to oppose it. Many Republicans who voted for it in 1996 now say they were wrong. And many organizations, like the pediatrics academy, have done an about face to recognize that facts support same-sex marriage as a societal support for children.