Earlier this summer, the Tenth Circuit Court of Appeals agreed with lower court rulings that same-sex marriage bans in Utah and Oklahoma were unconstitutional. Both states have now asked the Supreme Court to consider their appeals, and — particularly given the Court’s stay preventing Utah couples from marrying — it will likely take up a marriage case of some sort sometime soon. (Virginia is also asking the Supreme Court to consider its case, but the commonwealth isn’t defending its ban.)
The petitions filed by Utah and Oklahoma suggest which arguments will be presented at what could be the final court showdown for marriage equality. Here are some of the claims these states made to the Court this week.
1. The bans do not discriminate based on sexual orientation.
According to Utah, the state’s laws banning same-sex marriage “do not classify based on orientation; they classify based on sexual complementariness.” Because “the creation of new life requires both a mother and a father,” the state argues, only couples with the different genitals qualify for marriage (regardless of whether they’re actually capable of producing a child).
2. There aren’t enough same-sex parents to warrant protecting them.
Utah argues that the benefits of marriage encourage unmarried parents to marry and stay married, but that’s not true of same-sex couples. Quoting the dissent from Tenth Circuit Judge Paul Joseph Kelly, Jr., the state claims that “because ‘far more opposite-sex couples will produce and care for children than same-gender couples and perpetuation of the species depends upon procreation,’ it is rational to retain the marriage requirement of opposite-sex couples.” An estimated 786 same-sex couples are raising children together in Utah.
3. Same-sex couples have a different kind of sex.
Utah isn’t compelled by the argument that same-sex couples can adopt or have children through artificial reproduction, because gay sex is still different. “The question is whether they are similarly situated with respect to sexual interaction,” the state asserts. “Biology answers that question no.”
4. Different-sex couples will have more children out of wedlock.
Because allowing same-sex couples to marry allegedly emphasizes “adult emotions” over “rearing and raising children” (even though same-sex couples rear and raise children), Utah believes it would “exacerbate the belief… that it is no big deal to have a child outside marriage.” This would lead “naturally to more out-of-wedlock births.”
5. The meaning of marriage itself will be lost.
Both Utah and Oklahoma believe that the institution of marriage has an inherent definition, and thus purpose, that supports children and families that would no longer exist if same-sex couples could marry. “The greatest danger is that societal understanding of marriage as an institution designed primarily to connect children to their biological parents and to ensure child welfare (as opposed to primarily promoting adult happiness),” Utah writes in its petition, “will be diminished or lost.” Oklahoma similarly argues that “it is undeniable that legally redefining marriage as a genderless institution will have real-world consequences,” although it concedes that “it is not possible to know” what those consequences will be.
6. An 1828 dictionary defined marriage as being between a man and a woman.
In its petition, Oklahoma points out that Noah Webster defined marriage as the “union of a man and woman” in his 1828 American Dictionary of the English Language. Webster also wrote that “marriage was instituted by God himself” and included Bible verses about marriage along with the definition. In 2014, the Merriam-Webster dictionary includes same-sex couples as part of its definition for “marriage.”
7. Only different-sex couples can unintentionally get pregnant.
“Only sexual relationships between men and women,” Oklahoma points out, “naturally (and often unintentionally) produce children.” Because same-sex couples “do not create children as the natural (often unintentional) byproduct of their relationship,” they “thus do not further society’s compelling interests in steering naturally procreative relationships into enduring unions or connecting children to both their mother and their father.” In other words, marriage only exists for couples who might accidentally get pregnant.
8. Fathers will abandon their children.
Because same-sex marriage “undermines the importance of, and eliminates the State’s preference for, children being raised by both their mother and their father,” Oklahoma is convinced that it will dissuade fathers from taking responsibility for their children. Additionally, “it would encourage mothers to create or raise children apart from their fathers.” The petition to proceeds to cite studies of children raised by a single parent and even highlights comments President Obama has made about the importance of fathers.
9. The Court should heed what a majority of voters decided.
Oklahoma rejects the idea that its same-sex marriage ban infringes on the rights of same-sex couples, thus it also takes exception that the Tenth Circuit “negated” the right to vote “by more than one million Oklahomans.” “Invalidating the People’s voice on an issue as profound as the definition of marriage,” the state implores the Court, “presents an important question that warrants this Court’s review.”
10. States will have to recognize polygamy and incest.
The slippery slope continues to be a concern for both Utah and Oklahoma. Oklahoma suggests that according to the Court ruling, “states now must recognize all emotional relationships (including polygamous, polyamorous, and incestuous) as marriages.” Utah similarly asserts that “loving a person does not create a right to marry that person,” noting that “a man cannot marry a woman who is already married, and a woman who loves two men cannot marry them both.”
These petitions are not necessarily the states’ final arguments. If and when the Supreme Court considers a particular case, such as Utah’s, the state will then file a full brief. Still, these petitions provide a glimpse of what to expect when the question of marriage equality returns to the country’s highest court.