2015-APR: The Family Research Council's (FRC) brief
to the U.S. Supreme
Court opposing same-sex marriage (Continued):
Some of the points raised in their amicus curiae:1
"Believing that God is the author of life, liberty and the family, FRC promotes the Judeo-Christian world view as the basis for a just, free and stable society. ... Consistent with its mission statement, FRC is committed to strengthening traditional families." 2 [Emphasis is not in the original quotation]
Some would disagree with this statement on the basis that there is not a single "Judeo-Christian world view" as the FRC implies. Rather, the three largest monotheistic religions of the world -- Judaism, Christianity, and Islam -- each contain conservative and liberal wings which are referred to as denominations, sects, traditions, branches, communities, etc. These two wings interpret their Holy Book -- the Torah, Holy Bible, or Qur'an -- very differently, particularly on matters relating to human sexuality. Christian conservatives, such as the FRC often refer to about six "clobber passages" in the Bible which they interpret as condemning same-gender sexual behavior, regardless of the nature of the relationship. Liberal Christian generally interpret those same passages very differently and see no negative passages relating to same-sex marriage.
Marriages by same-sex couples have often been called "gay marriages." This is not the best terms, because "gay" has multiple meanings. Sometimes it refers to males with a homosexual orientation; other times it refers to both males and females with that orientation. In addition, "gay marriage" does not fit those same-sex marriages in which one or both spouses are bisexual. Surveys show that the number of gays and lesbians in the U.S. is approximately 5% of the adult population and is about equal to the number of bisexuals. So, "same-sex marriages" is a preferable term. It seems to be becoming more commonly used. A Google search for "gay marriage" on 2015-APR-21 returned 22.4 million hits; "same-sex marriage" returned 16.3 million.
However, religious conservatives often prefer to use their own terms.
One is "traditional marriage" to refer to a voluntary union of one woman and one man. This implies that a marriage of two men or of two women is a "non-traditional marriage."
Another is to call a woman-man union a "natural marriage." This implies that two men or two women marrying is unnatural.
In 2004, the voters in Kentucky, Michigan, and Ohio overwhelmingly passed amendments to their state constitution that banned same-sex marriage. The voters in Tennessee followed suit in 2006. The FRC brief's implication is that if they voted again today, the result would be the same. In reality, ever since 2011, national public opinion surveys have shown that a plurality or majority of voters nationally favor marriage equality.
The restriction of marriage to one man and one woman has a long history in the United States that goes back to the colonial era. The brief's implication is that this restriction should never be changed because the history of discrimination against same-sex couples has existed for such a long time.
"... no State permitted same-sex marriage until the Massachusetts Supreme Judicial Court‚s decided Goodridge in 2003, and [n]o country allowed same-sex couples to marry until the Netherlands did so in 2000 ... Regardless of the changes to marriage laws over the years, the fundamental right to marry never has been understood historically to include:
the right to marry someone of the same sex,
to marry someone who was already married and whose marriage had not been dissolved by a decree of divorce or annulment (bigamy or polygamy),
to marry someone who was incompetent or lacked the mental ability to enter into a marriage (contractual capacity),
to marry an underage minor without parental consent and/or judicial authorization (nonage),
or to marry a close relative (incest).
Marriage has been traditionally restricted to couples who, as a class, are capable to procreating children. This is a particularly weak argument because no state has ever refused marriage to couples who are infertile by reason of age or disability. Also no state has refused to marry couples who have no intent to procreate.
The brief claims that ban on same-sex marriage do not constitute sexual discrimination. Its authors conclude that the bans don't violate the Equal Protection Clause in the 14th Amendment to the U.S. Constitution on the basis of sex. The brief argued:
"The amendments and statutes treat men and women equally: both may marry someone of the opposite
sex; neither may marry someone of the same sex. There
is no discrimination between men and women."
They also argued that bans on same-sex marriage do not constitute discrimination on the basis of sexual orientation.
The brief stated:
"The laws are neutral on their face with respect to a person‚s sexual orientation. And the fact that they may have a disparate impact on homosexuals is of no constitutional relevance in the absence of competent
evidence (which is lacking here) that they were adopted and enacted with the intent or purpose of discriminating against homosexuals, as opposed to the mere knowledge that the laws could have such an impact. There is no discrimination on the basis of sexual orientation. ... There is no 'long history' of a right to enter into a same-sex
The case decided by the high court in 1967 in Loving v. Virginia legalized interracial marriage. But the petitioners in the present case:
"... confuse a restriction on the exercise of a fundamental right with the nature of the right itself. ... Loving addressed . . . an
unconstitutional eligibility requirement for marriage; it did not create a new definition of marriage."
The brief argued that:
"The classification in the laws is not between heterosexuals and homosexuals, but between opposite-sex couples and same-sex couples of either sex. As multiple courts have recognized, Parties to ‚a union between a
man and a woman‚ may or may not be homosexuals. Parties to a same-sex marriage could theoretically be either homosexuals or heterosexuals."
That argument contains an error. Outside of conservative Christian organizations, there are three generally accepted sexual orientations:
About 90% of the adult population have a heterosexual orientation; they are sexually attracted only to the opposite-sex.
About 5% have a homosexual orientation; they are sexually attracted only to the same-sex.
About 5% have a bisexual orientation; they are sexually attracted to both sexes, although generally not to the same degree. In their opposition to gays and lesbians, conservative Christian often ignore bisexuals.
The brief concludes from the ruling in Sevick v. Sandoval (2012) that although the ban on same-sex marriage:
"largely burdens homosexuals, the distinction is not by its own
terms drawn according to sexual orientation."
It continues on the same theme, saying:
"That laws reserving marriage to opposite-sex couples do not discriminate on their face between heterosexuals and homosexuals is borne out by the remarkable (but heretofore unnoticed) fact that dozens of the plaintiffs in the same-sex marriage cases that have been brought over the last twenty-four years previously had been married to a person of the opposite sex. In issuing marriage licenses, government officials do not inquire into the applicants‚ sexual orientation and, even if
the applicants volunteered that they were homosexual, the license would still issue if they were of the opposite sex. Conversely, no license would be issued to two heterosexuals of the same sex. ... Under well-established federal equal protection doctrine, a facially neutral law (or other official act) may not be challenged on the basis that it has a disparate impact on a particular race or sex unless that impact can be traced back to a discriminatory purpose or intent. ... Petitioners have made no argument that either the common law definition of marriage as a relationship that may exist only between a man and a woman or the longstanding statutory codifications of that rule 'were motivated by ill will'."
Their brief concludes that:
"The reservation of marriage to opposite-sex couples does not discriminate on the basis of sexual orientation in violation of the Equal Protection Clause." 1
This topic continues in the next essay with descriptions of
briefs opposing marriage equality during 2015-APR.
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.