The Key Supreme Court Briefs Supporting State Man-Woman Marriage Laws

Commentry by Gene Schaerr 

Supreme Court

The Supreme Court. Photo by Jeff Malet, Photography/Newscom

The briefs are in—over 150 in all—and today the Supreme Court will hear the arguments in the cases on states’ freedom to make marriage policy. Here are highlights of points made in the amicus briefs supporting man-woman marriage laws that the Court should consider:

  • More than 50 million Americans voted to retain the man-woman definition of marriage—61 percent of those who voted on the issue. The Supreme Court should not disregard their votes. Removing important and sensitive issues like marriage policy from democratic deliberation would weaken our system of self-government.
  • Marriage as the union of a man and a woman long predates our nation. That recognition has not been solely motivated by moral values. It is supported by long-accepted secular reasons tied to human biology, procreation and the needs of children. 
  • Laws recognizing marriage as the union of a man and a woman are not like laws that outlawed interracial marriages. A couple’s gender diversity has always been a fundamental, defining characteristic of marriage. By contrast, laws prohibiting interracial marriage were unrelated to the definition of marriage and therefore wrong. 
  • Man-woman marriage laws do not infringe the liberty of gay and lesbian Americans since they are free to engage in intimate relations and start a family with whomever they want without fear of civil or criminal sanctions. Man-woman marriage laws also allow gays and lesbians to marry someone of the opposite gender and rear a family together, as many have done.
  • On the other hand, as explained in a brief by 100 academic marriage scholars, a decision forcing the States to redefine marriage as “an any two adults” would erode or erase many important social norms that flow from man-woman marriage. The result, as history, theory, and social science confirm, would be a weakened institution of marriage that stands for what adults want rather than what children need—which is to be raised by a mom and a dad, preferably their own. In the end, if the man-woman definition is removed from marriage nationwide, fewer heterosexual men and women will wed—with significant long-term harmful effects on children and society.
  • Indeed, marriage is like an ecosystem that nurtures and protects a particular species: alter the ecosystem and it likely will not support the species nearly as well, if at all. Marriage is the social institution or ecosystem that society has long maintained to nurture man-woman marriages and children. And just as no-fault divorce altered the institution to the detriment of both marriage and children, so too removing the man-woman definition of marriage would compromise the marriage ecosystem, likely producing similar results. 
  • Disrupting marriage norms would particularly disserve children and women from socio-economically disadvantaged backgrounds. Just as no-fault divorce contributed to the deterioration of the marriage culture among this population, transforming marriage into a genderless institution would harm these more vulnerable populations the most.
  • Of the dozens of studies of the impact of same-sex parenting, only four have met social science’s methodological and data-related standards for drawing inferences about the population at large. All four ultimately show that, compared to the acknowledged gold standard of family structures—being raised by one’s married biological mother and father—on average, children’s outcomes are not as good when raised by same-sex couples. Furthermore, the only well-designed study to assess the impact of marriage on children raised by same-sex couples shows that children’s outcomes may be worse if the same-sex couples raising them marry.
  • The legal arguments for subjecting man-woman marriage laws to some form of constitutional “heightened scrutiny” are implausible. But regardless of the standard the Court chooses, such laws satisfy the demands of the Constitution because they advance the states’ compelling interests in the welfare of children and their mothers. Further, there is no way for states to retain all the benefits flowing from the institution of man-woman marriage without keeping the man-woman definition.
  • Redefining marriage would adversely affect First Amendment freedoms. As amicus briefs from Catholic, Protestant and LDS leaders point out, imposing same-sex marriage on the nation would threaten the religious liberties of individuals and institutions who continue to believe in traditional marriage. Such a ruling would also exacerbate the erosion of free speech rights of cultural dissidents, as same-sex marriage has already done in Canada. These are just some of the many reasons the Court should leave the definition of marriage where, under the Constitution, it properly belongs—in the hands of the People.

Gene Schaerr is a Washington, D.C.-based attorney who specializes in constitutional and appellate litigation. He has previously served as associate counsel to the president and as law clerk to Justice Antonin Scalia and has handled dozens of cases (including six he personally argued) before the U.S. Supreme Court. 

The Daily Signal, April 28, 2015, Used by Permission.

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