Broad support for marriage laws reflected in numerous briefs at Supreme Court

Friend-of-the-court briefs address wide-ranging problems with ending marriage debate by judicial fiat

Attorney sound bite:  Jim Campbell

WASHINGTON — The U.S. Supreme Court has received more than 60 friend-of-the-court briefs over the last few weeks in support of state laws affirming marriage as the union of a man and a woman.

Alliance Defending Freedom and the Alabama Attorney General’s Office filed one of those briefs on behalf of the state of Alabama. That brief, filed in Obergefell v. Hodges, explains the rationality of man-woman marriage laws and highlights the significant flaws with, and troublesome implications of accepting, baseless arguments claiming that those laws are constitutionally irrational.

“Marriage between a man and a woman is a universal good that diverse cultures and faiths have honored throughout the history of Western Civilization,” said ADF Senior Legal Counsel Jim Campbell. “How we treat marriage has societal consequences. The wisest course, as these briefs demonstrate, is for the court to resist demands to prematurely end the national debate over the future of marriage.”

The briefs show the sweeping support for marriage, the breadth of concern about the possible wide-ranging effects of striking down voter-approved marriage laws, and the problems with judicially imposing an end to the ongoing public debate on marriage. A few of the notable briefs include the following:

• A group of 100 marriage scholars projects some of the potential consequences of redefining marriage nationwide. They say that “in every U.S. jurisdiction for which [relevant] data are available, after the adoption of same-sex marriage the opposite-sex marriage rate declined by least five percent—in comparison to a national marriage rate that, in the past few years, has been fairly stable. And if a forced redefinition of marriage caused only a five percent permanent decline in U.S. opposite-sex marriage rates, under reasonable assumptions and over the next fertility cycle (30 years), that decline would result in nearly 1.3 million fewer women marrying. That would lead to an additional nearly 600,000 children born into nonmarital parenting situations, and nearly 900,000 more children aborted.”
• A group of scholars who support the welfare of women, children, and underprivileged populations similarly offers projections about the long-term effects of redefining marriage. As those scholars explain, “Redefining marriage...will likely harm countless women and children, particularly those in low-income communities. The risks that attend this fundamental social change are thus great. Therefore, if that change is going to happen, if society is going to embark on a course that threatens so much harm to women and children in socioeconomically disadvantaged communities, it should be the result of the thorough debate and vetting that occurs through the democratic process.”
• A group of 15 states whose citizens have affirmed marriage as the union of a man and a woman discusses the importance of permitting the people of each state to debate and decide the future of marriage for themselves. According to their brief, “In our federal system, [the definition of marriage] must be resolved by the ‘formation of consensus’ at the state level.... To resolve it instead through federal judicial decree would demean the democratic process, marginalize the views of millions of Americans, and do incalculable damage to our civic life in this country.”
• A group of 57 members of the United States Senate and House of Representatives explains that well-established federalism principles, which exist to preserve individual liberty, foreclose efforts to use the Constitution to redefine marriage in all 50 states.
• A group of major religious organizations, including the National Association of Evangelicals and the Church of Jesus Christ of Latter-day Saints, debunks the fallacious claim that ill-will toward same-sex couples motivate man-woman marriage laws, and their brief explains that constitutionally redefining marriage poses a grave threat to religious liberty.
• A group of 54 international-law experts from 27 countries highlights that “all national courts and international tribunals have refused to impose same-sex marriage judicially, with the sole exception of Brazil.”
• A group of 47 scholars led by Professor Robert George discusses how “States can enshrine the conjugal view of marriage without depriving same-sex partners of liberty” because “[t]he freedom to pursue romantic and familial companionship is not at stake” in these cases. They also explain that “States can define and have defined marriage as a conjugal union without undermining the equal dignity of those in same-sex relationships or of the children they rear.”
• A group of pollsters led by the Public Affairs Campaign explains that, contrary to some claims in the media, “recent national surveys show that the American people remain closely divided over same-sex marriage,” including “majority support for traditional marriage” and “a drop in support for same-sex marriage.”
• Six individuals who were raised by a parent in a same-sex relationship filed three separate briefs discussing their first-hand experiences with the hardships of being raised apart from one or both of their biological parents. As two of those individuals, Heather Barwick and Katy Faust, explain, “Regardless of how th[e] Court chooses to rule, we want the children of gay parents who come after us to know that they mattered. They were worth speaking up for. They are not simply part of the cost of doing the political business of the day.... We are willing to risk jobs, friendships, reputations, and even relationships with our beloved family members to state the painfully obvious fact that, though they love their gay parent, the same-sex-headed household involved great personal loss for children raised under them.”
• A group of organizations and scholars led by the American College of Pediatricians shows that of the eight total large-scale studies that purport to evaluate the welfare of children raised by same-sex couples, the four most recent “find that children with same-sex parents suffer substantially reduced well-being.”
• A group of 21 same-sex-attracted men and their wives demonstrates that many same-sex-attracted individuals choose to marry people of the opposite sex and create a family, citing a 2013 study which indicates that “51% of bisexual adults with children and 18% of self-identified gay men and lesbians with children [are] living in man-woman marriages.” They discuss the harm that a ruling against the challenged marriage laws would have on them and their families: “Rather than expand liberty, such a [ruling] would not only ignore the deeply fulfilling marriages between same-sex attracted men and women and their [opposite-sex] spouses, but would also constitutionally demean such marriages and families. Inescapably, striking down man-woman marriage laws on the basis of a constitutional deprivation would send a message to the same-sex attracted that there is only one choice for them, that man-woman marriage is unattainable, that they are acting against their nature for desiring it, and that pursuing it will be dangerous for them, their spouses, and their children. But, in reality, the opposite is true. The institution of man-woman marriage is not an insult; it is an ensign, beckoning to anyone—regardless of sexual orientation—that the union of a man and a woman is uniquely significant because it is endowed with procreative power and complementary capacity.”