Gay marriage briefs run gamut
Friend-of-court filings range from conventional to curious
WASHINGTON — Gay marriage is a fundamental right protected by the U.S. Constitution, or it’s the greatest national threat since slavery.
It’s a stabilizing force for children of gay couples, or it’s a negative influence that degrades a child’s wellbeing.
Those and other arguments — some conventional, some curious — are contained in more than 135 “friend-of-the-court” briefs filed with the U.S. Supreme Court as it prepares to decide whether states have the right to restrict marriage to one man and one woman.
On Tuesday, lawyers for Tennessee, Kentucky, Ohio and Michigan will urge the justices to uphold states’ rights to ban gay marriage. The cases were brought by gay couples challenging the bans, including Thom Kostura and Ijpe DeKoe of Memphis.
In one of the more novel arguments, a group of men who are attracted to other men but are married to women say that legal gay unions would marginalize and demean their own marriages.
A court ruling establishing a right to gay marriage would send the message that for men attracted to men, “marriage to a member of the opposite sex is an impossibility, even meaningless, and only same-sex marriage can bring gays and lesbians the personal and family fulfillment and happiness that is the universal desire of the human heart,” the men and their wives wrote.
“That one-size-fits-all message is false,” they concluded, “and the court ought not to send it.”
The cases have attracted an unusually large number of friend-of-the-court (amicus curiae) briefs from interested groups and individuals who aren’t parties to the cases but want the court to know where they stand.
But whether they will influence the nine justices is an open question, said Michael Higdon, associate professor of law and director of legal writing at the University of Tennessee, Knoxville.
“What most people are probably hoping is the sheer volume on certain sides will influence them,” Higdon said. “For example, a lot of people say the court could be influenced by the fact that so many states now allow same-sex marriage. Well, there could conceivably be an argument, ‘Oh, but look how many amicus briefs we’ve received on this side of the debate or that side of the debate.’”
Both sides of the gaymarriage debate are represented in briefs filed by political leaders, religious organizations, health care groups and others.
Children of gay couples filed testimonials in favor of gay marriage, while groups such as the Family Research Council argue allowing same-sex couples to wed will destroy the institution of marriage.
The Obama administration filed a brief in support of gay marriage, as did 40 cities and 226 mayors. More than 300 prominent Republicans, including Rudy Giuliani and Mary Cheney, signed onto a pro-gay marriage brief. Giuliani, a former mayor of New York, and Cheney, the openly gay daughter of former vice president Dick Cheney, argue that state marriage bans discourage “important family values.”
On the side that opposes gay marriage, former Arkansas governor Mike Huckabee, a potential GOP presidential candidate in 2016, filed a brief calling same-sex marriage a danger to public health.
The conservative Texas Eagle Forum suggested in its brief that constitutional recognition of same-sex marriage would divide the nation in a way that hasn’t been seen since the court’s pro-slavery Dred Scott decision in 1857.
U.S. Rep. Marsha Blackburn of Brentwood and a group of GOP leaders from the 2012 Republican National Convention’s platform committee argued in their brief against same-sex marriage that men are more “sexually permissive” than women and are more likely to have numerous sexual partners without a woman in the relationship.
Women have a “different emotional makeup” than men, they argued, and heterosexual marriage has a “tempering effect” not found in gay marriage.
A group called Survivors of Sexual Orientation Change Therapies submitted a brief in favor of gay marriage, saying the failure of discredited treatments to change same-sex attractions illustrates the “immutability of sexual orientation.” But another group called Parents and Friends of Ex-Gays and Gays argued that sexual orientation is a “fluid, transient, personal characteristic that can and does change.”
Far from being politically powerless or victims, gay activists and their allies “have become the oppressors,” the ex-gays contend, treating people who have changed their sexual orientation “with hatred and disrespect” because “their very existence undermines the immutability narrative.”
What most people are probably hoping is the sheer volume on certain sides will influence them.” Michael Higdon, professor of law