Ten Novel, Absurd, And Irrelevant Arguments Made In Supreme Court Briefs Against Marriage Equality

Alabama Supreme Court Chief Justice Roy Moore speaking at a rally against marriage equality in Austin, Texas. CREDIT: AP PHOTO/ TAMIR KALIFA
Alabama Supreme Court Chief Justice Roy Moore speaking at a rally against marriage equality in Austin, Texas. CREDIT: AP PHOTO/ TAMIR KALIFA

Oral arguments for the same-sex marriage Supreme Court case are just over a week away, and just as many groups and individuals from across the country expressed their support for marriage equality, many expressed their opposition. Among them are the more familiar arguments, like that “conjugal marriage” (i.e. “complementary” relationships in which someone with a penis has sex with someone with a vagina) is unique and deserves special recognition regardless of whether such unions result in children, that same-sex parenting harms children even though all valid research points to the opposite conclusion, or that marriage is a states rights issue, not a human rights issue.

But here are ten novel, absurd, and irrelevant — not to mention offensive — arguments from the dozens of amicus briefs filed in favor of upholding state bans on same-sex marriage.

If same-sex marriage is legal, fewer different-sex couples will marry.

According to 100 Scholars of Marriage, “the forced redefinition [of marriage] will undermine important social norms — like the value of biological connections between parents and children — that arise from the man-woman understanding; that typically guide the procreative and parenting behavior of heterosexuals; and that are highly beneficial to their children.” What they call the “institutional defense,” these scholars argue that marriage itself will be harmed if more people can marry.


Gene Schaerr, an attorney who defended Utah and Idaho’s same-sex marriage bans and who drafted the scholars’ brief, explained at Public Discourse that same-sex marriage will communicate to heterosexual men that society no longer needs them “to bond to women to form well-functioning families or to raise happy, well-adjusted children.” Thus, more procreation will happen outside of marriage and those children won’t have the benefit of a two-parent home.

This argument is supported by studies that actually reached the opposite conclusion. For example, a study from the Netherlands found, “Neither the legalization of same-sex marriage nor the introduction of registered partnership have had significant negative effects on the Dutch different-sex marriage rate in the aggregate.” The brief also suggests that states that have legalized same-sex marriage had declining marriage rates, but in almost every case, those states actually saw spikes in marriage (thanks to equality) then stabilized to their previous rates. The brief itself admits, “Obviously, one cannot fairly infer that a decision to redefine marriage caused (or did not cause) an increase in divorce or a reduction in marriage without controlling for confounding factors.” Indeed, there is no evidence to support that inference whatsoever.

Children of same-sex couples fare worse if their parents are married.

The American College of Pediatricians (ACPeds) is an anti-LGBT splinter organization, deceptively named so people will confuse it with the larger American Academy of Pediatricians. The group’s brief unsurprisingly recounts the debunked studies that claim children do worse with same-sex parents, but it also makes one particular bizarre point based on the results of a recent flawed study by Donald Paul Sullins, a Catholic priest and sociology professor at Catholic University of America.

“Comparing the married and unmarried same-sex parents with their opposite-sex counterparts,” the brief offers, “Sullins found that, while outcomes for children with opposite-sex parents improved if their parents were married, outcomes for children with same-sex parents were notably worse if their parents were married.” In other words, ACPeds is arguing that children already being raised by same-sex couples are better off if their parents are not allowed to marry.


Of course, the brief admits that the specific data from which Sullins drew that inquiry was from 1995, long before any same-sex family had access to the legal protections and benefits of marriage regardless of whether they identified as married. Moreover, Sullins could not confirm that any of the same-sex couples he studied were married, nor did he account for how the children he studied were impacted by divorce or other forms of parental separation. Despite these numerous fatal flaws, ACPeds still concludes that there’s a clear pattern: “Among same-sex parents, moving from an unmarried to a married state substantially degrades child well-being.”

“The ex-gay community is subject to more animus, intolerance, and discrimination than any other minority group.”

The ex-gay group Parents and Friends of Ex-Gays & Gays (PFOX) filed a brief arguing against the idea that sexual orientation is an immutable characteristic. “PFOX affirms sexual orientation is a fluid, transient, personal characteristic,” the group writes, “and that individuals can and do change their sexual orientation.” To provide proof of this, PFOX shared the personal stories of four ex-gays — all of whom just happen to profit from advancing the harmful, ineffective treatment as the directors of ex-gay ministries.

But the organization went a step further, attempting to paint the gay community as bullies and the ex-gay community as the most “reviled, ridiculed, and marginalized” minority group in the country. “No other minority group has endured the brunt of growing intolerance, moral-cultural approbation, and derision more during this time of cultural upheaval than have former homosexuals,” the brief asserts. “Consequently, many ex-gays and their supporters are forced to remain closeted, on the fringes of American culture, because of fear of societal disapproval and stigma.” This has become the ex-gay movement’s regular excuse for not being able to produce even 100 proud ex-gays, let alone the thousands they claim exist.

“The negative stereotyping by gay activists of ex-gays is a sad end to the long struggle for tolerance by the gay community; the oppressed have become the oppressors. That ex-gays and their supporters are now the targets of the same people who, until recently, were victimized themselves, demonstrates the tremendous political power and social acceptance of gays and lesbians.” What this accusation and claim of victimhood has to do with marriage equality is unclear, but PFOX is nevertheless opposed to it.

It’s an insult to the gay men who marry women to suggest that they should have to marry the same sex.

One of the briefs advocating against marriage equality was filed by “same-sex attracted men and their wives.” Despite identifying as “same-sex attracted” (note: not “gay,” nor “ex-gay” for that matter), they “choose to build their families on the foundation of marriage between a man and a woman.” They worry that if same-sex marriage is legalized, it would communicate to other same-sex attracted men that “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. That one-size-fits-all message is false, and the Court ought not to send it.”


Almost all of the couples who signed the brief have participated in the “Voices of Hope” project, which collects videos of mixed-orientation Mormon couples, as well as other LGBT-identified Mormons who uphold the Church’s anti-LGBT teaching. The organization that oversees that project, North Star, does not explicitly advocate for ex-gay therapy, but last year, it did absorb the Mormon ex-gay organization Evergreen International. Among the signers is Jeff Bennion, who was featured on TLC’s My Husband’s Not Gay. Bennion co-founded North Star and has frequently defended ex-gay therapy.

Not all “Voices of Hope” oppose marriage equality though. Josh and Lolly Weed, who recorded a video for the project, were quoted several times in the brief, but objected to their inclusion, saying that they do not support its argument. “My wife and I support marriage equality,” Josh Weed told the Salt Lake Tribune, adding, “We know many wonderful people who are hurt by the current state of affairs.” Weed received a lot of media attention when he came out in 2012 as a “happily married” gay Mormon. He then had to deny rumors that he practiced ex-gay therapy in his own counseling work.

One of the only couples that signed onto the brief that wasn’t from the Mormon project was Doug Mainwaring and his wife, Valerie. Co-founder of the National Capital Tea Party Patriots in Maryland, Mainwaring believes the “liberal intelligentsia” is trying to dismantle marriage altogether and that gay dads are not capable of showing warmth and tenderness to their children.

Same-sex couples shouldn’t be allowed to marry because a few adults are bitter that their parents divorced long ago after one of them came out as gay.

Three different anti-equality briefs were submitted by adults who oppose marriage equality because of resentment that they were raised by a gay parent. Robert Oscar Lopez and Brittany Newmark Klein argue that the children of gays are “treated with less dignity, more suspicion, fewer protections and heightened discrimination/harassment/retaliation than they saw before same-sex marriage achieved a level of national success” because they are “denied their heritage and forced to live in segregated domestic spaces.” Heather Barwick and Katy Faust, seemingly rejecting all forms of adoption, claim that “children have a right to know and be raised by both their biological mother and father.” Lastly, Dawn Stefanowicz and Denise Shick warn that “other adult children from gay gay households do not feel safe or free to publicly express their stories and life-long challenges.”

Though conservatives have upheld this select group as the “poster children” of same-sex parenting, their stories are in no way representative of same-sex families. None of them were raised from birth by a same-sex couple; all of them experienced their parents’ divorce after a gay parent came out. Several of them also experienced abuse. They grew up decades ago, when there was much less LGBT acceptance in society, and there was no such thing as same-sex marriage. All of them now regularly advocate against LGBT equality.

Meanwhile, there are now thousands of children being lovingly raised by intentional same-sex families who are doing just fine — and who support their parents’ relationships in turn.

Same-sex marriage should lose in court because it’s winning in public opinion.

One of the criteria courts consider when deciding whether to protect a status from discrimination with “heightened scrutiny” is whether a group has been “relegated to such a position of political powerlessness as to commend extraordinary protection from the majoritarian political process.” Thus, though LGBT people constitute only about 5 percent of the population, opponents of marriage equality — including the state of Ohio — argue that they are too politically powerful to warrant extra protection under the Constitution.

Conservatives used to argue that the country wasn’t ready for same-sex marriage, but now they’re arguing that it’s too ready, and one group took this argument about as far as it can go. Concerned Women for America, an anti-LGBT hate group, submitted a brief outlining just how much power LGBT people have amassed politically, financially, religiously, in the media, and nationwide. Other lower courts that have recognized “sexual orientation” as a protected class were “doubly wrong,” CWA argues, because “political powerlessness is a required factor in determining classifications, and homosexuals are not politically powerless.”

After arriving at its final point, that a 2012 poll found that 54 percent of Americans favor same-sex marriages, CWA simply concludes, “For the foregoing reasons and for other reasons stated by each of the Respondents, this Court should affirm the judgments of the Sixth Circuit.” In other words, same-sex marriage should lose in court because it’s winning everywhere else.

The argument doesn’t quite make sense, but the facts at least hold up. The same poll, from CNN and ORC International, found in March of 2015 that support for marriage equality as a constitutional right had risen to 63 percent.

Sodomy was condemned for so long that it’s inappropriate to honor it now with the status of marriage.

It was only 12 years ago that the Supreme Court ruled that laws banning same-sex sexual activities (“sodomy laws”) were unconstitutional (Lawrence v. Texas). Some states still even have their sodomy laws on the books, even though they are not enforceable.

The Foundation for Moral Law, founded by Alabama Supreme Court Chief Justice Roy Moore and still run by his wife Kayla, isn’t ready to give up on sodomy laws. After all, as the organization’s amicus brief argues, “Prohibitions against homosexual conduct go back to ancient times. The Bible, which has influenced moral values for Judaism, Christianity, Islam, and other religions, contains clear disapproval of homosexual conduct.”

After pointing out that sodomy was prohibited in all states until 1961, the brief concludes, “In light of this history, it is inappropriate for the lower federal courts to take this newly-discovered right to engage in homosexual conduct and require the states to not only permit it but also give it the honored status of marriage.”

Adding to its intellectual heft, the brief also argues, “Calling a same-sex union a marriage does not make it a marriage, any more than calling a tail a leg means a dog has five legs.”

If same-sex marriage is legalized, then military chaplains won’t be able to preach against it.

Since the repeal of the military’s “Don’t Ask, Don’t Tell” policy, there have been just a few conflicts when military chaplains were held to account for discriminating against — and disparaging — gay military personnel. Despite ample fear-mongering in Congress, chaplains having anti-gay beliefs really hasn’t created an issue for them keeping their jobs.

The International Conference of Evangelical Chaplain Endorsers (ICECE) is not convinced. As its name implies, the group’s primary function is endorsing Christian chaplains to the military, and in their amicus brief, they argue that the Court should rule against marriage equality specifically to avoid burdening chaplains. “While at first glance this may not seem to be an issue within the purview of Christian military chaplains,” ICECE writes, “the inevitable result of amending the Constitution by judicial fiat instead of through Article V creates a conflict between the Constitution’s religious liberty and Free Speech clauses, their underlying principle of freedom of conscience, and the military’s need for ‘good order and discipline’ in the face of the inherent battle of opposing views of the nature and purpose of marriage and man.”

Nationwide marriage equality — which the group describes as “a common law crime” because homosexuality was against the law when the Fourteenth Amendment was ratified — would “produce an inherent and irreconcilable tension, resulting from Christian chaplains’ obligation to support and defend the Constitution when that obligation conflicts with their legally mandated duty to represent their faith, sending churches and endorsers in order to minister to military personnel of like faith.” This will result, ICECE concludes, “in a climate that will penalize and repel those with traditional, conservative Christian beliefs and be an interpreted by the military as the Court’s invitation to the military to become instruments of tyranny, replacing the rule of law.”

The brief does not address the fact that marriage equality is already legal in most of the country and has not significantly disrupted the chaplain corps.

Same-sex marriage isn’t equal because women condition men to be sexually exclusive while men discourage women from divorcing.

The arguments that men and women are “sexually complementary” and that mothers and fathers offer something different to children are fairly common among opponents of marriage equality. One amicus brief, however, offered a new spin on how gender stereotypes prove that same-sex couples don’t deserve equal access to marriage equality.

The brief in question was filed by “Leaders of the 2012 Republican National Convention Committee on the Platform,” those leaders being Congresswoman Marsha Blackburn (R-TN), James Bopp, Jr., and Carolyn McLarty. The brief provides a litany of arguments about how man-woman relationships are unique, including the claim that women have a “socializing effect” on men in marriage. “Marriage helps to focus a man’s energy and aggression to socially desirable ends,” the trio asserts, “providing for and protecting wives and children, making their wives and children feel secure, happy, and loved.” Without such an obligation of responsibility to support their family, men are less likely to work at all.

They go on to claim that “same-sex marriage does not provide the same benefits as traditional marriage” specifically because these socializing effects of the opposite sex aren’t present. “Men tend to be more sexually permissive than women and are more likely to have numerous sexual partners without a woman in the relationship,” they explain, and likewise, “Women are more likely than men to initiate divorce because of their different emotional makeup. The complementary, tempering effect of the opposite sex is simply not present in same-sex marriages.”

In other words, men are too horny and women are too emotional for same-sex relationships to succeed long-term, so the “the government has no obligation to recognize or promote same-sex marriage.”

Legalizing same-sex marriage will promote hostility against opponents of marriage equality, like the backlash against those who supported California’s Proposition 8.

The individuals who proposed California’s Proposition 8 and then unsuccessfully defended it in court don’t want to be forgotten about. That’s why and the Yes on 8 campaign filed an amicus brief arguing that they and their supporters are still victims.

The same-sex couples fighting for marriage equality, they argue, want to “permanently brand a sincerely held belief of millions of Americans as irrational, mean-spirited malice.” This will increase the risk of “harassment, intimidation, and reprisals against those who believe in traditional marriage.” They provided a myriad of valid, but certainly isolated, examples of vandalism and minor physical altercations with people who were rallying in favor of Prop 8. But then the brief also claims that supporters experienced “widespread economic reprisals,” like boycotts against “Yes on 8” businesses that cost people jobs. As an example, it highlights Brendan Eich, who was temporarily CEO of Mozilla in 2014 until outcry from within the company fomented into a national backlash against his hiring and he resigned.

Protecting opponents of marriage equality from this kind of retaliation, contends, outweighs marriage equality. The harassment has been unfairly downplayed, and though they aren’t trying to claim that their victimization is more severe than what LGBT people have experienced, they hope “shining a light” on their harassment will “refocus the marriage debate on core issues and to increase civility.”

Marriage equality advocates have “come to enjoy significant political and cultural power,” but “supporters of traditional marriage today live under the real and constant threat of harassment and intimidation.” Worse yet, their very viewpoint “is at risk of being condemned as irrational bigotry by the highest court in the land.” Therefore, bans on same-sex marriage should be upheld.

The brief does not mention that in 2013, the most recent year for which data are available, hate crimes against people for being gay, lesbian, or bisexual outnumbered hate crimes against Christians by about a 12-to-1 ratio.

(HT: Kathleen Perrin/Equality Case Files.)