The U.S. Supreme Court's consideration of appeals of 4 SSM cases:
one each from Kentucky, Michigan, Ohio, & Tennessee.

Part 11: 2015-MAR:
The Family Research Council's brief to the
U.S. Supreme Court for Obergefell v. Hodges
in opposition to marriage equality:

We use the acronym "SSM" to represent "same-sex marriage."
"LGBT" refers to lesbians, gays, bisexuals, transgender persons
and transsexuals. "LGB" refers to lesbians, gays, and bisexuals.

This topic is continued from the previous essay

The Family Research Council's brief to the U.S. Supreme Court opposing same-sex marriage:

The Family Research Council's brief has some interesting arguments against marriage equality.

The FRC is a conservative Christian para-church organization, that has been determined by the Southern Poverty Law Center to be one of the anti-gay hate groups in the U.S. ₁ In their press release of APR-08, they deny that the fundamental right to marry includes the right to marry a person of the same sex.

They attempt to show that the Equal Protection and Due Process clauses of the 14th Amendment to the U.S. Constitution are not violated by bans on same-sex marriage. They do this by arguing that banning same-sex marriage is:

• Not really discrimination on the basis of sexual orientation. This is because when a couple applies for a marriage license, they issuing clerk does not inquire about the applicants' sexual orientation. The brief reasons that if the clerk doesn't know the sexual orientation of the applicants then there cannot be any discrimination based on sexual orientation. The brief quotes the ruling in Baker v. State which said:

  "The marriage statutes do not facially discriminate on the basis of sexual orientation ... sexual orientation does not appear as a qualification for marriage under the marriage statutes [and the State] makes no inquiry into the sexual practices or identities of a couple seeking a license."

  However, when two women or two men appear at a courthouse to apply for a marriage license, the clerk might surmise that each would either have a homosexual or a bisexual orientation.

• Not really discrimination on the basis of sex. This is because both female couples and male couples who want to get married are denied marriage licenses. Thus, they reason, since males and females are both discriminated against equally because of their sex, then there is no discrimination based on sex. It is like saying prior to 1967 -- when interracial couples were prohibited from marrying in some states -- that since blacks and whites were equally discriminated against, then the anti-miscgenation laws did not discriminate against mixed-race couples.

They conclude that because no discrimination is ocurring on the basis of either sex or sexual orientation, that bans on marriages by same-sex couples do not treat people differently and thus do not violate the 14th Amendment's requirement that the federal, state, and local government treat people equally.

Webmaster's personal comment: [bias alert]:

I personally find these two concepts difficult to wrap my mind around. But then, I am not a lawyer and so my mind cannot perform the necessary contortions to make sense of these arguments.

Still, I am forced to admire the creativity displayed in these very innovated arguments.

Tony Perkins, the President of the Family Research Council, wrote in a statement:

"The American people will not accept marriage redefinition by judicial fiat from any court including the Supreme Court. Americans have not reached a ‘broad social consensus’ on the redefinition of marriage. The Justices need to remember this fact. Judges should not impose on the states something that will only cause deep social division. We continue to hear the narrative from those seeking to redefine our most basic social institution that thirty-seven states have same-sex ‘marriage.'

In reality, voters in only three states have endorsed redefining marriage.

Americans should be free to uphold marriage as it has always been defined, the union of a man and a woman." ₂

That is, Americans should remain able, by popular vote, to ban loving, committed same-sex couples from getting married in the state where they live. Voters should also be able vote to ban the recognition of marriages by residents in their state who were legally married in another state.

Historical evidence shows that Perkins is on weak ground. The redefinition of marriage to include same-sex couples is the sixth time that the U.s. public has been forced to adjust their understanding of who is eligible to marry:

• During the 19th century, at the conclusion of the Civil War, slaves were allowed for the first time to decide freely whom they would marry.
  
  
• In the 19th century, the federal government allowed Utah to upgrade its status from territory to state, but only if they first abandoned allowing men to marry more than one wife. The Church of Jesus Christ of Latter-day Saints -- the main Mormon denomination -- agreed to the condition and Utah became a state.

• In the late 19th century, some states prohibited profoundly deaf couples from marrying. The American people accomodated that change as well.
  
  
• By the early 20th century, those states had repealed their prohibitions and allowed deaf couples to marry once more. Again the American people adapted to that change.
  
  
• In 1967, the U.S. Supreme Court issued a ruling in Loving v. Virginia that allowed interracial couples to marry everywhere in the U.S. At that time there were 16 states in the American southeast that still banned such marriages -- a few more than ban same-sex marriage today. Also that year, polls showed that about 72% of American adults were opposed to interracial marriage, and 48% thought that persons in an interracial marriage should be prosecuted as having committed a criminal offense. Yet this did not inhibit the high court from legalizing marriages between persons of the same race. If the U.S. Supreme Court had not acted in 1967, it probably would have taken three decades or more before Americans' support for interracial marriage reached the same level -- about 55 to 60% by which they support same-sex marriage today.
  
  A 2012 report by Pew Research showed that:

  "Couples of different race or ethnicity made up a record 8.4 percent of all married couples in 2010, up from 3.2 percent in 1980. About 15 percent of all new U.S. marriages in 2010 were between spouses of a different race or ethnicity. The report also said nearly two-thirds of Americans say it 'would be fine' if a member of their own family were to marry someone outside their own racial or ethnic group. In 1986, the public was divided about this." ₃

There is no obvious reason why allowing same-sex couples to marry would not result in the same acceptance by the American public as occured for these previous five marriage redefinitions . It will probably take a few decades before the vast majority of Americans feel comfortable with same-sex marriage. Same-sex spouses may initially be stared at, and occasionally confronted as did interracial couples in the past. ₄ But this will fade over time. Older teens and young adults form the first generation where the majority know a member of the LGBT community as a friend or relative. They have had the opportunity to observe a non-heterosexual person close up. Old prejudices and falsehoods fade. A very high percentage of this generaton accepts this community as will the generaton approaching their later teen years.

This is a particularly weak argument to place before the U.S. Supreme Court, because Perkins' statment may be interpreted as saying that the U.S. Supreme Court's ruling in Loving was an error, that the high court in 1967 should have ignored the 16 states' ban on interracial marriages, and simply allowed states to legalize interracial marriage when their citizens felt comfortable with it.

Perkins also wrote:

"In a unique observation, FRC highlights (and lists in an appendix) previous same-sex marriage court cases in which one or more of the plaintiffs acknowledged that they had previously been legally married to a person of the opposite sex. This observation demonstrates either that sexual orientation is not immutable, that same-sex-attracted individuals are able to obtain marriage licenses, or both."

Webmaster's second comment: (bias alert)

This statement makes no sense to me. On the question of the immutability of sexual orientation, Perkins has completely overlooked the approximately 5% of people who have a bisexual orientation. They are sexually attracted to both men and women. This percentage is approximately equal to the percentage of adults who have a homosexual orientation. Thus, among those same-sex couples who wish to marry in which one partner was formerly married to a member of the opposite sex, the partner is likely to have a bisexual orientation. Alternately, as noted above, they might have a homosexual orientation and been told that the best method to convert their orientation to heterosexual was to marry a person of the opposite sex. This is particularly bad advice, since a very large percentage of such marriages end in divorce. The percentage of people who are able to change their sexual orientaton is either near zero or zero. The closing of Exodus Internatonal after almost four decades of failing to change people's sexual orientation is proof of that.

This topic continues in the next essay, Part 12.

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

1. Evelyn Schlatter, "18 Anti-Gay Groups and Their Propaganda," Southern Poverty Law Center, Intelligence Report, 2010-Winter Issue #140 of at: http://www.splcenter.org/
2. Tony Perkins, "Family Research Council Files Amicus Brief in US Supreme Court Marriage Case," Family Research Council, 2015-APR-08, at: http://www.frc.org/
3. Wendy Wang, "The Rise of Intermarriage: Rates, Characteristics Vary by Race and Gender," Pew Research Center, 2012-FEB-16, at: http://www.pewsocialtrends.org/
4. "Interracial marriage: Your stories of the good, the bad and the ugly," NBC News, 2012-FEB-16, at: http://usnews.nbcnews.com/

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Copyright © 2015 by Ontario Consultants on Religious Tolerance.
First posted: 2015-APR-11
Latest update: 2015-MAY-01
Author: B.A. Robinson

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