LAST EDITED ON 01-30-13 AT 11:54 AM (EST)

Actually, that's only a new tactic in Susan Estrich's mind. The idea that marriage is integrally linked to procreation has been at the center of all the legal arguments and court cases on gay marriage. Estrich, a Harvard Law grad, should know that, but maybe she was under deadline and out of ideas.

What that argument addresses is that there ia a nondiscriminatory reason that states would choose to limit marriage to heterosexual couples -- because marriage provided a way to ameliorate the effects of unplanned pregnancy. The fact that some heterosexual couples are infertile is irrelevant; only heterosexual couples can have unplanned pregnancies. Thus, because there is a reason other than anti-homosexual animus that the state would choose to limit marriage to heterosexual couples, such a limitation on marriage is not illegal discrimination and should be permitted to stand. (However, the argument has no relevance to the question of whether DOMA should be permitted to stand, which is a federalism argument.)

I can't say too much about this case because of my involvement in a related case, but I just want to say that, unlike Ms. Estrich's claim, I have NEVER seen a brief filed by the parties opposing gay marriage that claimed that "homosexuality is immoral." Do you know why? Because such an argument would be certain to lose. That doesn't mean that politicians haven't argued that (right, ex-Sen. Santorum?). But no court case has.