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Preview on same-sex marriage — Part IV, Supporting the state bans

This is the final post in a four-part series on the written arguments that have been filed in the same-sex marriage cases at the Supreme Court.  This post covers the briefs filed by individuals and organizations supporting the states’ authority to control the definition of marriage, and, in particular, to prohibit same-sex marriage.  The first three articles in this series covered the briefs filed by the challengers, by the four states defending their bans, and by the amici supporting the challengers, including the federal government.

Taken as a whole, the sixty-six legal briefs filed in defense of the four states’ bans on same-sex marriage show evident signs of trying mainly to satisfy Justice Anthony M. Kennedy. There is a studied effort among many of these amici not to disparage the gains that the gay rights community has made in the law, gains that usually have come from Kennedy’s singular influence, while at the same time foreseeing a dire future for traditional opposite-sex marriage and to state sovereignty if the institution is opened by judicial decree to gays and lesbians.

That is a rather delicate balancing act, because the lawyers for most of the amici have seemed to conclude that the Court is no longer willing to hear a gay rights challenge heavily focused on moral revulsion to the homosexual lifestyle.  Some of that discomfort does come through, but these briefs reveal a lawyerlike sensitivity to find just the right combination of social science justification of traditional marriage, with the grave uncertainty in undertaking a broad new social experiment in gay rights, laid down in a judicial mandate.  In the data wars that are so central a part of the dispute in the cases now before the Court, the amicus briefs on the other side suggest a confidence that they have the better of that argument — especially if they avoid indications of “animus” or hostility that have quite often doomed opposition to gay rights advances.

There are two questions before the Court, but the overwhelming proportion of argument on this side is focused on the first question: whether states can ban same-sex marriages. There appears to be an abiding assumption that that is the central constitutional dispute, and its outcome will make it easy for the Court to answer the second question: the power to refuse to recognize existing same-sex marriages.

Perhaps there is in this also an implication that the second question would not matter greatly in the long run if there were no initial right to marry.  The overall pool of marriages seeking recognition may well shrink greatly.

In short, these amici tend to acknowledge that the Court to which they are making their plea is not the Court that in 1986 issued Bowers v. Hardwick, with its evident hostility to homosexual lifestyle, but is instead a Court that has changed markedly, and is entirely willing to listen, with apparent sympathy, to the new claims for gay equality — reflecting, of course, the dominant influence and the chosen approach of Justice Kennedy.

It would be wrong, though, to suggest that there is not some genuine dread emerging in some of these filings.  Some, like the brief of the Family Research Council, are sure that the arrival of same-sex marriage will destroy the institution of marriage as it has been known throughout western history.  Others make ultimately the same point more subtly by using social science data to show the devastating effect they perceive for children of same-sex parents — as, for example, in a brief by a group known as the Ruth Institute, which suggests that a child’s capacity to develop “self-knowledge” has little or no chance when raised by same-sex parents who entered marriage only out of gay attraction to each other.

Concerned Women for America submitted a filing seeking to undermine any clam that gays in America are a politically isolated or powerless group, and as such, the group contends, there is no need whatsoever for the Court to fashion constitutional protections for them.

Former Arkansas governor and returning presidential candidate Mike Huckabee filed a brief seeking to show that a gay lifestyle is a threat to public health.  He relies on data that he interprets as showing that same-sex parents are likely to die earlier than others, and a mixed group of conservative foundations and advocacy groups filed a brief which portrayed same-sex marriage as a mere prelude to all kinds of pagan practices.

The Texas Eagle Forum suggested that a national recognition of same-sex marriage would fracture the nation as nothing had since the Dred Scott decision validating slavery, foreseeing a “conflagration” that would be centered in the American South.

But what these kinds of amicus filings lack in restraint is offset by their lack of numbers; moreover, they give clear evidence that they are more directed at their own constituencies than at a potential majority of the Supreme Court.  They stand out because they deviate rather noticeably from the more reasoned advocacy that reflects scores of lawyers’ judgment that the Court cannot and will not be driven by extreme rhetoric.

There is one brief on this side of the case that uses calm reason but seeks a truly historic outcome: it argues that the lower federal courts simply have no jurisdiction over claims of any right to same-sex marriage, and that the Supreme Court should dismiss these appeals outright, and let the battle then be waged in state courts, with perhaps an ultimate appeal from a state court to the Supreme Court.

This is the brief of the conservative advocacy organization, Eagle Forum Education and Legal Defense Fund.  It leaves for later the question of whether the Supreme Court has Article III authority to decide the issue at any point, but in the meantime clearly seeks to end the controversy as it has now reached the Justices in appeals from lower federal courts.  This brief is seeking to raise a major obstacle to a Supreme Court ruling this Term, and any time very soon.  How the Justices will react is deeply uncertain, and may well depend upon how closely they read this particular brief.  If it does not come up at all in oral argument, it conceivably would have no effect.

An example of the kind of brief that some members of the Court are likely to find more compelling and perhaps even quite persuasive is one from a group calling itself scholars of marriage, which seeks to build a mathematical model of the effect of a “re-definition of marriage” if over the next thirty years it led to no more than a five-percent reduction in the number of opposite-sex marriages, a figure that it implies may be too small.  The bottom line, it suggests, could be an added 300,000 children being born  into “non-marital parenting situations” with considerable personal and social deficits as a result, plus the anticipated abortion of nearly 900,000 children.

Such a brief is clearly intended to show that anxiety over the arrival of same-sex marriage is not simply an emotional response, but a social consequence that is quite capable of being enumerated.   That is in sharp contrast to the comment, during the federal court battle over California’s famous “Proposition 8” ban, by a lawyer arguing in favor of that ban, who had no way to answer when the judge asked what the impact of same-sex marriage would have on traditional marriage.  “Your Honor, I just don’t know.”

These amici groups seek to fill that possible void, and to do so in a measured voice.  These cases may, indeed, be their last real chance to head off a nationalization of same-sex marriage, and these lawyers and their clients show a determination not to forfeit this opportunity in a heavy and anguished reliance upon anti-gay rhetoric, unmoored in data.

It is clear that one of the primary thrusts is to use the strong sympathies that Justice Kennedy displayed toward children in the Defense of Marriage Act case in 2013 as sympathies that can also be transferred to the fate of those children as they grow up in families parented by same-sex parents.  When these briefs do not offer conclusive predictions, they suggest that the lack of knowable consequences is, itself, a reason to move cautiously.   Some suggest, for example, that America still has no firm idea of the true nature of same-sex relationships, and thus should wait until it has.

Although the dominant sort of concern voiced in these papers is the children who will be affected, now and in the future, there are other constituencies that some of these filings view as at risk.

There is much argument in these papers in opposition to judicial resolution of the ultimate marriage questions, preferring to have the issue left to play out in the political community.  That, of course, was an idea central to the decision that the Supreme Court now has under review — the ruling by the U.S. Court of Appeals for the Sixth Circuit, upholding four states’ marriage bans.

A group known as the Education Fund foresees a potential destruction of the federal system of divided government between national and state levels, a group named the Lighted Candle Society warns against sweeping away by judicial degree laws that reflect voter choice, and a group of members of the Wyoming legislature who foresee a serious problem of trying to reconcile a host of laws across the country governing marriage that are in heavy tension with each other.

There are a few personal stories among these filings, as from two children who were raised by same-sex parents and describe the difficulties they faced along the way, testimonials from several men who consider themselves to be single sex in their gender identities but are living happily in opposite-sex marriages, and the stories of four individuals who identified as gay but have since switched and now are prospering in opposite-sex relationships.

Congressional opponents of same-sex marriage are represented by fifty-seven members, states trying to hold onto to or revive their states’ bans have joined in a fifteen-state brief, the Platform Committee of the 2012 Republican National Convention has filed a brief lauding the GOP’s defense of traditional marriage, and international law scholars from twenty-seven nations have joined in arguing that America would be an exception to the “consensus” in the world if it were to embrace same-sex marriage.

On Friday, reply briefs were filed on both sides of these cases, thus completing the briefing stage for the four granted cases and finally readying them for oral argument on April 28.























Recommended Citation: Lyle Denniston, Preview on same-sex marriage — Part IV, Supporting the state bans, SCOTUSblog (Apr. 18, 2015, 12:06 AM),