Like many other states, Utah is facing a lawsuit challenging its state ban on same-sex marriage. In their preliminary response earlier this summer, Gov. Gary Herbert (R) and Attorney General John Swallow (R) argued that banning same-sex marriage is not discrimination because men and women can both marry the opposite sex — thus they are treated equally. They have now filed their complete defense of the ban, and they use a series of flawed arguments.
A significant chunk of their brief dwells simply on the notion that states are allowed to define marriage however they want and marriage has “always” been exclusive to heterosexuals, so there is no reason it should need to be changed. Here, though, are five other arguments they posit:
There Is No Gender Or Sex Discrimination
Like their preliminary response, Utah’s state officials continue to argue that limiting what sex a person can marry is not sex discrimination:
Plaintiffs also attempt to avoid rational-basis review by arguing that the man-woman definition of marriage constitutes gender discrimination, which would, if true, require heightened (but not strict) scrutiny. Plaintiffs might have a point if the marriage statutes actually treated the genders differently, say, by forbidding a man from marrying another man while allowing a woman to marry another woman, or vice versa. But the Utah marriage statutes do not do that. The provisions are generally and neutrally applicable to both genders. Neither a man nor a woman may marry a person of the same sex. That meaning does not constitute sex discrimination because it treats men and women equally.
Similar wordplay would point out that a man can marry a woman but a woman can’t, and likewise a woman can marry a man but a man can’t.
Banning Same-Sex Marriage “Reinforces Responsible Procreation”
As plenty of their predecessors have argued, Utah’s leaders believe that whether or not same-sex couples can marry will impact the child-bearing habits of heterosexuals:
Only sexual relationships between a man and a woman are capable of creating a child. Heterosexual sex always has been and still remains, even considering scientific advances in alternative ways to create human life, the sole viable means by which the human race and any society perpetuates itself. But though procreation may preserve the species, it does not automatically benefit society, and in fact can cause great social burdens if society is left to care for the resulting children. […]
In other words, it doesn’t matter if same-sex couples actually raise children, as 20 percent of Utah’s same-sex couples are, because a sperm and an egg is what should determine who can marry.
Society Benefits If A Child’s Parents Can Marry
The brief suggests that everybody — not just children — benefits if only opposite-sex couples can marry:
But, importantly, traditional marriage does much more than just benefit the children. Society benefits from an institution that provides the best opportunity for a child to reach his or her personal potential as an individual and as a productive citizen all the while minimizing the cost to society of caring for and rearing the child… In other words, traditional marriage is society’s best means of maximizing private welfare to the vast majority of children. Channelling [sic] procreation into a social institution that assures — to the largest practical extent — procreation’s consequences (children) begin and continue life with adequate private welfare is thus a fundamental and originating purpose of marriage. The immediate beneficiaries of this private welfare purpose are the child and the often vulnerable mother, but society rationally sees itself as the ultimate beneficiary.
This exact same argument could be made for allowing same-sex couples the right to marry for the sake of their children.
There’s Still A Debate About Same-Sex Parenting
Citing Mark Regnerus and a new similarly flawed study from Douglas Allen, a board member of the National Organization for Marriage’s Ruth Institute, the Utah officials suggest that children suffer with same-sex parents:
Utah could rationally conclude that, all things being equal, it is better for children to grow up being raised by both a mother and a father… This best-interest-of-the-child rationale is based in tradition, common-sense, experience,and empirical data. Though unnecessary for rational basis review, there are numerous studies that support the rationale that children benefit from being raised by both a mother and a father…
To be sure, other studies, which Plaintiffs will undoubtedly cite, have reached the conclusion that children suffer no ill-effects from being raised by same-sex parents. Be that as it may, the conflicting studies at best show the optimal heterosexual parenting rationale is at least debatable. Under rational basis review, the Court must therefore uphold Utah’s definition of marriage.
In the context of all of the research that actually has assessed same-sex parenting, the notion that there is a “debate” is a farce. All major medical organizations support marriage equality, both for the health of gay and lesbian people and their children.
It Is Prudent To “Proceed With Caution”
Just as Justice Samuel Alito suggested that there may be “long-term ramifications” to marriage equality, Utah’s officials want to proceed with caution:
No one knows right now the precise impact same-sex marriage will have on traditional marriage, children, and society at large. But given the crucial role man-woman marriage has played in building society to this point and the uncertainty surrounding the impact of same-sex marriage, Utah can rationally choose to proceed with caution.
Even granting the premise, it would be impossible to determine the consequences — if any — of marriage equality without marriage equality. Thus, this argument simply delays justice in order to deny it.
This brief relies on myths, fears, and “tradition” to justify continuing to ban same-sex marriage. Herbert and Swallow continue to avoid acknowledging how that ban actually impacts the same-sex families already living in Utah.
(HT: Kathleen Perrin.)