The U.S. Supreme Court's consideration of appeals of 4 SSM cases:
one each from Kentucky, Michigan, Ohio, & Tennessee.
Part 14: 2015-APR:
A brief by the hierarchy of the Roman Catholic
in the case Obergefell v. Hodges (Cont'd).
Personal brief by Ryan Anderson & Gene Schaerr.
Both oppose 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.
2015-APR-02: The brief to the Supreme Court by the Roman Catholic Church opposing marriage equality. (Cont'd)
As noted in the previous essay, the USCCB brief states that:
"... redefining marriage as a matter of
constitutional law would needlessly create church-state conflict for generations to come. Because
marriage so pervades civil and social life, these
conflicts will similarly pervade, extending much
farther than other categories of conflict that might be
The identical argument could have been made in 1967 by groups opposing interracial marriage. This was the year that the high court issued its ruling in the Loving v. Virginia lawsuit. At that time, only 16 U.S. states in the southeast quadrant of the United States -- from Virginia to Texas to Florida -- prohibited interracial couples from marrying.
In 1967, Bernard Cohen, a lawyer for the American Civil Liberties Union, made the case for equality before the nine Justices of the high court, saying simply:
"The Lovings have the right to go to sleep at night knowing that if should they not wake in the morning, their children would have the right to inherit from them. They have the right to be secure in knowing that, if they go to sleep and do not wake in the morning, that one of them, a survivor of them, has the right to Social Security benefits. All of these are denied to them, and they will not be denied to them if the whole anti-miscegenistic scheme of Virginia... [is] found unconstitutional." 1
One can imagine a lawyer for the plaintiffs in the present case saying:
The plaintiffs have the right to go to sleep at night knowing that if should they not wake in the morning, their children would have the right to inherit from them. They have the right to be secure in knowing that, if they go to sleep and do not wake in the morning, that one of them, a survivor of them, has the right to Social Security benefits. All of these are denied to them, and they will not be denied to them if the whole homophobic schemes of Kentucky, Michigan, Ohio, and Tennessee are found unconstitutional." 1
The U.S. Supreme Court ruled in favor of marriage equality for interracial couples across the entire country. They issued this decision even though the vast majority (72%) of American adults were opposed to legalizing interracial marriage at the time. Also a near majority (48%) favored criminal punishments for interracial couples who married. In comparison, during early 2015, about 60% of U.S. adults favor allowing same-sex couples to marry.
The final paragraphs of Justice Earl Warren's ruling
for the unanimous decision of the Supreme Court in 1967 said:
"The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
These convictions must be reversed.
It is so ordered." 2
In mid 2015, the high court could conceivably rule in favor of marriage equality for same-sex couples, saying something like:
"The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious sexual orientation discriminations. Under our Constitution, the freedom to marry, or not marry, a person of the either gender resides with the individual and cannot be infringed by the State.
These convictions must be reversed.
It is so ordered."
Webmaster's note: (bias alert)
I personally find the USCCB's final argument above offensive. A main function of the U.S. Supreme Court is to rule whether federal laws, state laws, or amendments to sate constitutions are unconstitutional. They are expected to do this on constitutional grounds. They are expected to uphold the federal Constitution without considering whether their decision will be well received or not by the public. The United States is a constitutional democracy, and its people have high respect for the federal Constitution.
To my knowledge the high court's ruling in Loving v. Virginia settled the matter of interracial marriage in the 16 states immediately and permanently. There was no rush of lawsuits afterwards. I did a quick scan of the Internet and cannot find accounts of any resistance to the decision. I was in my early 30's when the ruling in Loving v. Virginia was handed down. I do not recall any outbursts of civil disobedience among racists against Loving v. Virginia. I do not expect any civil disobedience among homophobes -- people who are in favor of discrimination based on sexual orientation -- if the high court rules in mid-2015 in favor of allowing same-sex couples to marry.
2015-APR: Personal brief submitted to the U.S. Supreme Court by Ryan Anderson and Gene Schaerr:
Ryan Anderson is a Senior Fellow at the Heritage Foundation -- a conservative think tank. He has co-authored the book "What is marriage? Man and Woman: A Defense." 3
Gene Schaerr is a prominent laywer and constitutional law expert and a former associate counsel to President George H.W. Bush. They submitted a joint personal Amicus Curiae brief to the high court in opposition to marriage equality. On APR-20, they explained their brief at a meeting of the Heritage Foundation on APR-20.
Samuel Smith, writing for the Christian Post, said:
"Anderson ... explained that governments did not originally get into the 'marriage business' because they wanted to be involved in their citizens' romances. Rather, state governments got involved in marriage so that the children who were born from marriages would have the best chance of having a stable family environment to grow up in, which included both a mom and dad. [Anderson asserted]:
'There is nothing in the U.S. Constitution that requires all 50 states to redefine marriage. The Constitution is simply silent on whether the consent-based vision of marriage or the comprehensive vision of marriage is the true definition of marriage. It is silent on whether the states should devise their marriage policy to serve'." 4
The terms "consent based marriage" and "comprehenvive vision of marriage" may have been coined by Anderson. Apparently:
- "Consent based marriage" means to define eligibility to marriage in a way that prohibits same-sex couples from marrying, against the latter's consent.
- This would imply that "non-consent based marriage" which is favored by about 60% of the U.S. population and rejected by about 30%, involves a "comprehensive vision of marriage" or marriage equality which allows both same-sex and opposite-sex couples to marry.
Anderson also explained that the U.S. Supreme Court is not the supreme judge of whether laws are constitutional or not. Leaders of all three branches of the federal government -- Judiciary, Legislative, and Executive -- and the leaders of state governments take an oath of office to defend and uphold the federal Constitution. He stressed that all branches of government are co-equal in interpreting what the U.S. Constitution actually means.
Schaerr explains that bans on marriages by same-sex couples are constitutional. He said:
"The bottom line is … there has never been any right to marry the person you love and so a states' rejection of that claimed right couldn't possibly be a denial of due process under the plain language of the due process clause of the Fourteenth Amendment. If we turn to the equal protection clause of the Fourteenth Amendment, the argument that same-sex marriage is based on, that clause also has holes in it."
"Unlike the old Jim Crow laws that prohibited mix-raced marriages, the man-woman definition of marriage doesn't offend the equal protection guarantee because it allows any otherwise qualified man and woman to marry, regardless of their sexual orientation."
"The state man-woman marriage laws do not deny anybody the ability to marry based on their sexual orientation. There is no question on the marriage application that asks are you gay or lesbian,. The law doesn't care. The law just says that there are certain requirements for marriage and if you are willing to comply with those requirements, then we will give you a marriage license."
In other words, laws and constitutional amendments that deny same-sex couples access to marriage do not discriminate against them. Schaerr reasons that every person with a homosexual orientation is free to marry almost any another person as long as they are of the opposite-sex -- subject only to age and genetic closeness limitations. Of course, they are incapable of feelings of sexual attraction to members of the same-sex, so it would be an unusual and typically very short-lived marriage.
Hearings by the high court in the lawsuit Obergefell v. Hodges are scheduled for 2015-APR-28, and the court's ruling is expected in late 2015-JUN or early JUL, Schaerr said:
"... as of right now, in terms of Supreme Court Justices, its three-and-a-half on our side and nobody who's committed to recognizing a Constitutional right to same-sex marriage [on the other]."
This topic continues in the next essay with a description of fear-inducing
briefs to the U.S. Supreme Court that
attempt to predict a massive
increase in abortion rates, and
precipitoius drops in both marriage
rates and birth rates if same-sex couples are allowed to marry.
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- "Loving Decision: 40 Years of Legal Interracial Unions," National Public Radio, "All Things Considered" program, 2007-JUN-11, at: http://www.npr.org/
- "Loving v. Virginia eText - Primary Source," enotes.com. at: http://www.enotes.com/
- Sherif Girgis & Ryan T. Anderson & Robert P. George, " What Is Marriage?: Man and Woman: A Defense," Encounter Books (2012). Read reviews or order this book safely from Amazon.com online book store Available from Amazon.com in either paperback version at $11.44 or Kindle format at $8.17.
- Samuel Smith, "Does the Constitution Require Same-Sex Marriage in All 50 States?" The Christian Post, 2015-APR-21, at: http://www.christianpost.com/
How you may have arrived here:
Copyright © 2015 by Ontario Consultants on Religious Tolerance.
First posted: 2015-APR-22
Latest update: 2015-APR-24
Author: B.A. Robinson