A coalition of anti-gay religious organizations have filed a friend-of-the-court brief opposing marriage equality in Utah, arguing that banning same-sex couples from marrying has nothing to do with any kind of animus against gay people. The brief was filed by the Mormon Church, the U.S. Catholic Bishops, the National Association of Evangelicals, the Ethics and Religious Liberty Commission of the Southern Baptist Convention, and the Lutheran Church-Missouri Synod.
Conservatives have steadily tried to distance themselves from the notion that their opposition to marriage equality has anything to do with disapproval of gay people, and this brief may represent the epitome of that effort. In fact, the religious groups argue that their beliefs about marriage “have nothing to do with homosexuality.” The brief largely ignores any discussion of the gay community, leaving open the question of what banning same-sex couples from marrying actually does to the marriages of straight couples. Instead, the brief comes off as wholly passive-aggressive, implicating same-sex couples for hurting marriage without explicitly saying so.
By arguing against animus, the religious groups are hoping to counter Judge Robert Shelby’s reasoning in his ruling, in which he concluded that the only purpose for passing a constitutional amendment banning same-sex marriage was to keep same-sex couples from marrying. Because the amendment went out of its way to ban similar domestic unions, the wording suggests imposing inequality “was not merely the law’s effect, but its goal.” Moreover, given the amendment was a reaction to marriage equality becoming legal in Massachusetts, it “preemptively denied rights to gay and lesbian citizens of Utah that they may have already had under the Utah Constitution.”
The religious groups counter this by arguing that there was, in fact, a purpose for the amendment other than discrimination against same-sex couples: namely, that it helps protect husband-wife marriage, which is good for society. The implication is that marriage has to be protected from same-sex couples, without any explanation as to why. Here’s a look at some of the other passive-aggressive points made in the brief:
Citing studies about single “fatherless” parenting that did not actually include same-sex couples for comparison, they conclude that “gender-differentiated parenting is important for human development and that the contribution of fathers to childrearing is unique and irreplaceable.” Of course, as Judge Shelby pointed out, this case is about marriage — not parenting laws, so this argument is moot. The implication by including this argument is that same-sex couples would be inferior parents to children, though nothing is offered to support this claim.
The religious groups suggest that marriage laws will actually influence behavior:
By reserving marriage for the relationship between a man and a woman, the law encourages socially optimal behavior through an institution that supports and confirms the People’s deep cultural understanding — and the sociological truth —that stable mother-father marital unions are best for children.
If heterosexuality is the “socially optimal behavior,” this implies that homosexuality is sub-optimal, and indeed they argue that marriage equality would alter marriage to “serve the interests of adults.” This ignores the fact that many Utah same-sex couples are already raising children and would benefit from marriage. It also absurdly implies that gay people are going to start practicing heterosexuality just because they can’t get married.
Preserving The Status Quo
Though Shelby saw the amendment as explicitly protecting against the possibility of equality, these religious groups simply assert that it maintained the status quo:
In compelling State courts to adhere to the age-old understanding of marriage, Utah and Oklahoma laws did not create new legal rights for married couples or impose any new burdens on same-sex couples. They merely preserved the status quo.
In other words, voters can’t be blamed for imposing discrimination if the discrimination already existed. This doesn’t actually address Shelby’s point that the amendment specifically prevented the possibility that a state court could overturn that discrimination, further enshrining that discrimination in state law.
Voters Are The Victims
Fulfilling conservatives’ new talking point that homophobes are the real victims of homophobia, the brief argues that overturning the amendment would have serious consequences for voters:
It would necessarily declare that Utah and Oklahoma voters hold views on marriage that are irrational or bigoted. Maligning their deeply held convictions in this way would “demean” such voters, with “the resulting injury and indignity” of having their personal convictions condemned by a court and used to overturn laws for which they personally voted. To say the least, that would be an astounding declaration given the venerable history of man-woman marriage and the fact that the marriage laws the Plaintiffs challenge are substantively indistinguishable from laws in 33 States.
In essence, the actual consequences for same-sex couples and their families are of less importance than how voters’ feelings would be hurt if their amendment is invalidated for being unconstitutionally discriminatory.
Religion Is The Victim
The religious groups conclude their brief by pointing out that they would personally be insulted if the court ruled that their beliefs were discriminatory:
It follows that subjecting marriage laws and amendments to unusual constitutional scrutiny because they coincide with traditional morality would also raise grave First Amendment concerns. Increased scrutiny could be regarded as a “religious gerrymander,” indirectly “regulating… political participation because it is undertaken for religious reasons.” Though differing religious groups may align on different sides of the marriage issue judges cannot pronounce the religious beliefs of one set of voters progressive and another ignorant or hateful.
The groups essentially admit that they are trying to force their religious values — of which moral disapproval of homosexuality is common among all five — on everybody else in the state, while claiming that they’ll be the victims if that is not allowed.
This is a change in tone from the briefs many of these same religious groups filed in the Proposition 8 and Defense of Marriage Act cases. There, they suggested marriage equality would have “potentially wide-ranging consequences,” arguing that social scientists are undecided about the effects of same-sex parenting on children. They may have further sugarcoated their opposition to marriage equality since then, but they did nothing to actually make a case against allowing same-sex couples to marry, let alone counter Judge Shelby’s claim that banning same-sex marriage does nothing except “impose inequality” on the gay community.
(HT: Kathleen Perrin)