The U.S. Supreme Court's consideration of appeals of 4 SSM cases:
one each from Kentucky, Michigan, Ohio, & Tennessee.
Part 10: 2015-MAR:
Some of the points raised in briefs
to the U.S.
Obergefell v. Hodges
support or 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-MAR: Points raised by briefs filed with the U.S. Supreme Court that favor same-sex marriage (Cont'd):
The Obama Administration's brief (Cont'd)
"This Court has appropriately recognized only a small set of legal classifications as constitutionally suspect and subject to heightened equal-protection scrutiny. Classification on the basis of sexual orientation presents the rare circumstance of a classification that should be added to that list. Sexual orientation satisfies all four factors that this Court has looked to in determining whether to recognize a suspect class.
- First, lesbian and gay people have been subject to significant and continuing discrimination in this country. That history includes criminalization of intimate relations, treatment as deviants, denial of rights to care for children, targeting in hate crimes, and limitation of employment opportunities. ... "
- Second, sexual orientation bears no relation to ability to participate in and contribute to society. Lesbian and gay people make critical contributions in every significant area of this Nation‚s life.
Third, discrimination against lesbian and gay people is based on an immutable or distinguishing characteristic. Sexual orientation is a core aspect of a person‚s identity, and it defines lesbian and gay people as a class.
- Fourth, lesbian and gay people are a minority group with limited political power. Recent progress toward eradicating some of the harshest and most overt forms of discrimination has in significant respects been the result of judicial enforcement of the Constitution, and legislative gains have often generated political backlash.
Heightened scrutiny under the Equal Protection Clause is particularly appropriate in the context of legal barriers to marriage. A State should be required to present an especially strong justification for a law that excludes a long-disadvantaged class of persons from an institution of such paramount personal, societal, and practical importance." 1
Think Progress analyzed many briefs filed in favor of marriage equality: 2 They found:
The ‚Voices of Children‚ brief, filed by the Family Equality Council and COLAGE, highlights the tens of thousands of children being raised by same-sex couples who have benefited or could benefit from their parents marrying.
The brief argues:
'The question before the Court is not what kinds of families are best, the question is whether there is a legal basis for depriving these children of the protections and security that the Sixth Circuit and Respondents offer as the very reason marriage exists'."
The brief filed by the American Sociological Association (ASA) states:
"Children raised by same-sex parents fare just as well as children raised by different-sex parents. ... [Negative] claims by marriage opponents about the well being of children are unsupported by any social science study published to date. Their claims neither undermine the social science consensus nor establish a basis for upholding the Marriage Bans."
Think Progress commented on the briefs filed by many adoption organizations in support of marriage equality:
"Studies show that same-sex couples are far more likely to adopt or foster-parent children, but marriage laws often prevent those children from being legally connected to both parents. When couples can‚t marry, they‚re less likely to adopt, which keeps more children in the child welfare system. Moreover, the argument by equality opponents that biological-parent families are superior stigmatizes not just same-sex families, but all adoptive families. 'Adopted children can grow up as happy and healthy as other children,' the brief states, and, 'Adoptive parents, regardless of their sexual orientation, are just as capable of supporting and nurturing children as biological parents'.
Different-sex couples might be the only couples who can conceive children by having sex with each other, but they are not the only couples raising children. If the Court believes that marriage is designed to serve the best interests of children, then letting same-sex couples participate in that institution furthers that goal, at least according to both their own children and the experts who advocate on their behalf." 3
Links to briefs submitted my dozens of groups and individuals in favor of marriage equality can be found on the Equality Case Files' Facebook page. 4 They contain a wealth of information.
2015-MAR: Points raised by briefs filed with the U.S. Supreme Court that oppose same-sex marriage (Cont'd):
These briefs were due to be submitted early in 2015-APR:
The state of Kentucky's brief to the high court says that his state's ban on same-sex marriage is not discriminatory:
Leigh Gross Latherow, a lawyer who prepared a brief to the U.S. Supreme Court in favor of Kentucky's ban on same-sex marriage contained an unusual argument. She explained that the ban does not discriminate on the basis of sexual orientation simply because the law prohibits both gay and straight people from marrying a person of the same gender. His word were that:
"... men and women, whether heterosexual or homosexual, cannot marry persons of the same sex" under Kentucky law."
In her opinion, this makes the law non-discriminatory."
She may have been inspired by an argument made by the State of Virginia in the case Loving v. Virginia almost a half century ago when they said that the ban on interracial marriages was not discriminatory because whites were barred from marrying blacks just as blacks were banned from marrying whites. Because blacks and whites were both forbidden to marry a person of another race, then the law was not discriminatory.
Dan Canon is a lawyer representing the six LGBT plaintiff-couples who are challenging the Kentucky marriage equality ban. He said that the state's argument is "especially absurd" as applied to same-sex marriage. He commented:
"Kentucky is in essence saying that our clients are precluded from marriage entirely, unless they change their sexual orientation (or simply marry someone to whom they are not attracted). It's akin to passing a law banning all Catholic churches within city limits, and then saying it's not discriminatory because you can still go to a Baptist church."
Sam Marcosson, a professor of constitutional law at the University of Louisville's Brandeis School of Law, said that the brief's defense of:
"... marriage inequality has really hit a new low. I wonder what Governor Beshear and his lawyers would say if the shoe was on the other foot, and if the only option for marriage was of the same-sex variety. ... Whatever his reasons, the governor has set Kentucky on a course of fighting to preserve invidious discrimination, and he has waged that fight in a deeply embarrassing way. The taint to his legacy will be difficult for history to ignore."
Lawyer Latherow repeats in the brief a different argument that she had also presented previously in lower courts. By prohibiting marriage between two men or two women, she believes that the state's birth rate will increase as more opposite-sex relationships will form:
"... that further the commonwealth's fundamental interest in ensuring humanity's continued existence."
She apparently believes that banning same-sex marriages will cause gays and lesbians to marry persons of the opposite-sex and procreate. Many Christian faith groups have recommended that gays and lesbians marry a person of the opposite sex in an attempt to change their sexual orientation to heterosexual. The most recent denomination to advocate this is probably The Church of Jesus Christ of Latter-day Saints -- the Mormon Church. Unfortunately, wherever it has been tried, it has almost inevitably resulted in divorce.
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
Obama Administration, "United States Amicus Brief, Scribd, 2015-MAR, at: https://www.scribd.com/
- The webmaster of this site continues to be amazed that today, over a decade after same-sex marriage was first legalized in the U.S., individuals and groups writing about same-sex marriage still do not recognize that some such marriages include one or two persons with a bisexual orientation.
Zack Ford, "How marriage equality opponents' arguments are getting turned against them," ThinkProgress, 2015-MAR-13 at: http://thinkprogress.org/
"Supreme Court Marriage Cases," Facebook Notes by Equality Case Files, 2015-FEB-27, at: https://www.facebook.com/
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Copyright ¬© 2015 by Ontario Consultants on Religious Tolerance.
First posted: 2015-MAR-15
Latest update: 2015-APR-11
Author: B.A. Robinson