Weird Friends of the Court

(AP Photo/J. David Ake)


If you’ve felt encouraged by recent trends in favor of gay rights—including the new Washington Post poll showing 58 percent of Americans support marriage equality—swing over to SCOTUSblog and read some of the nearly 60 “friend of the Court” briefs opposing gay marriage.

On Tuesday and Wednesday of next week, the Supreme Court will hear arguments in two cases—the first on California’s Prop 8, the second on the Defense of Marriage Act—that could determine whether the federal government can define marriage as between a man and a woman, and whether state bans on same-sex marriage are unconstitutional. The parties are represented by some of the lions of the Supreme Court bar, including two former Solicitor Generals—Paul Clement and Ted Olson—on either side of the issue (though arguing on separate days and on separate cases). Their briefs are strong.

But the Court allows others to file briefs as amici curiae, or “friends of the Court.” These amicus briefs are usually a mixed bag, and on cases like this especially so. Controversial cases about social issues bring out the crazies, and crazies can hire lawyers to write a brief. Sometimes the crazies are the lawyers. 

Here’s a taste. Apparently the real victims here are not gay men and lesbians marginalized by the laws of over 40 states. The real victims are religious people. If gays and lesbians are allowed to marry, the argument goes, people who want to discriminate against them for religious reasons won’t be able to. And that will make them sad.

Recognizing same-sex marriages, according to the Liberty, Life, and Law Foundation will “impose crippling burdens on people of faith.” Christians working as “photographers, florists, tailors, caterers, printers” or in “bakeries, bed-and- breakfast establishments, or reception venues” may have to assist with weddings they oppose. Forcing religious people to run their businesses in a non-discriminatory way would be like—I am not making this up, you can see for yourself—slavery. “Thirteenth Amendment concerns lurk just beneath the surface.” Maybe the injustice of having to make a bouquet for Adam and Steve will be the subject of Tarantino’s next movie. Or Spielberg’s.

Continuing with the religion theme, a number of briefs argue the Court should use the Bible as its “authoritative source” of law. One brief quotes the Genesis story of Adam giving up a rib in exchange for feminine companionship: “This is now bone of my bones, and flesh of my flesh: she shall be called Woman, because she was taken out of Man. Therefore shall a man leave his father and his mother, and shall cleave unto his wife: and they shall be one flesh.” To the extent there is an argument here, it is this: God created “Adam and Eve,” not “Adam and Steve.”

If the Court is not convinced by Bible stories, the justices should, please, above all else, think of the children. The parade of horribles is lengthy. The Foundation for Moral Law warns the Court that “legalizing same-sex marriage would cause children to conclude that same-sex marriage is. . . ” (brace yourself!) “. . . normal.” A brief by a BYU law professor argues that children raised by gay parents will be drains on society. Children raised by a “married mother and father” are truly fortunate, since they are “less likely to attempt or commit suicide,. . . less likely to be a victim of physical or sexual abuse, less likely to abuse drugs or alcohol, . . . less likely to be sexually active as teenagers,” “less likely to contract STDs,” and even “less likely to divorce when they get married.” They also probably have less acne.

According to the brief filed by The Lighted Candle Society, a group co-founded by Ed Meese, Ronald Reagan’s attorney general, the “most important issue” in the marriage cases is not marriage but: “What will kindergarteners be taught?” Expanding the marriage right will cause the “message of the deconstruction of marriage and family” to “penetrate[] the minds of our kindergarteners.” Then, apparently, the gig is up: “It will unquestionably affect the future behavior of our children.”

As go the kindergartners so goes the nation, leading to “the destruction of the shared values upon which American society is built.” This rending of the social fabric, according to another brief, will be harmful “particularly for under-privileged Americans,” including “the poor, the less-educated, and minority groups.”

If that argument doesn’t convince you, there’s a “not enough kids” argument too. According to the BYU professor’s brief, traditional marriage is necessary for “the perpetuation of the species.” I suppose the logic is that without the protection of traditional marriage, women would not want to get pregnant. The population explosion around the world is immaterial, because those are not the kind of babies we need. “This is a matter of special concern” because few “developed” nations have replacement birthrates, and Europe is facing a “demographic winter.” And we wouldn’t want fewer of those cute little European babies, would we?

If there is a dominant trend in these briefs, it is a fascination with sex. And the bizarre arguments are abundant. A brief filed by the Catholic legal group The Thomas More Society, for example, argues that gay people cannot have sex. “A man and a woman, and only a man and a woman, are capable of engaging in sexual intercourse.” Now that’s going to come as a surprise to some people.

What they’re getting at is an argument that comes up in a number of briefs: straight people can’t be trusted with their penises and vaginas. They have, in the words of one of the party’s briefs, “the undeniable and distinct tendency of opposite-sex relationships to produce unplanned and unintended pregnancies.” The brief for the Conference of Catholic Bishops agrees, arguing that “the state has an interest in channeling the sexual and reproductive faculties of men and women into the kind of sexual union where responsible childbearing will take place.” Another brief says it this way: “sex between men and women tends to make babies, and babies need moms and dads.”

So marriage is the cudgel to keep straight rascals in check. Otherwise they’d be breeding like rabbits. Gays and lesbians do not need marriage—when they have sex for fun, no one gets pregnant.

Of course the real worry is not with straight women but with straight men. Recognizing same-sex marriage would uncouple marriage from the obligation of childrearing and, according to one brief, “would diminish the social pressures and incentives for husbands to remain with their wives and biological children.” But for the ol’ ball and chain of marriage, straight men would be roaming the earth like Johnny Appleseeds, and the resulting children would have only their mothers to take care of them.

Then there’s the fixation on how a ruling in favor of gay marriage will start the nation down a slippery slope toward polygamy and incest.  Adam and Steve today; tomorrow Adam, Steve, with Cain and Abel along for the ride as well. But no one seems to notice that the slippery slope worries are as great with heterosexual marriage as same-sex marriage. The slope between gay marriage and polygamous or incestuous gay marriage is no steeper and no slicker than between heterosexual marriage and polygamous or incestuous heterosexual marriage.

So how would this “slippery slope” danger play out? Is the worry that recognizing marriage equality for gays and lesbians will drive straight men into the arms of their sisters? Well, now you’ve lost me.

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