In the weeks leading up to oral arguments in Obergefell v. Hodges, a collection of marriage equality cases being heard at the Supreme Court this month, groups on both sides of the issue have been flooding the Court with amicus briefs.
These have inevitably included some very bad arguments from lawyers arguing on behalf of anti-LGBT groups. Here are five of the worst:
5. Gays Need ‘Tough Love,’ Like Smokers Or Drug Abusers
Mike Huckabee Policy Solutions (which identifies itself as a group “backed by private citizens and organizations who support the national policy aims of Mike Huckabee”) and anti-gay “statistician” Paul Cameron’s Family Research Institute tell the Justices that “[h]omosexuality and same-sex marriage are tied to early death” and thus gay people, much like drug abusers, need “tough love” instead of marriage rights.
As with smoking or drug abuse, it would be neither compassionate nor kind to normalize and encourage a known and significant public health risk such as homosexuality. Heightened early mortality risk suggests that homosexual practice (whether in casual or long-term unions) is self-injurious and therefore would put undue financial, emotional, and health burdens on survivors, especially children, as well as society, pursuant to any normalization of same-sex marriage by decree of this Court.
Just as in the cases of drug abusers or suicidal individuals, it would not be compassionate nor kind of this Court to attempt to further normalize and encourage known and significant public health risks represented by LGBT lifestyles and unions. Thus, the expansion of LGBT activity by decree of this Court is likely to proliferate undue financial, emotional, and health burdens upon survivors, especially children, and upon wider society as well. Far from “hateful,” the amici curiae herein hold that deference to the States in the regulation of lawful marriage, as well as federalist restraint and humility by this Court, would represent an act of love. “Tough love,” perhaps, but love nonetheless.
4. Marriage Equality Will Lead To Civil War
While the Texas chapter of Eagle Forum, in a brief written by Phyllis Schlafly’s son Andrew, never exactly says in its Supreme Court brief that a broad ruling in favor of marriage equality would lead to civil war, it does draw an awful lot of parallels between the effects of Obergefell and those of the infamous pre-Civil War Dred Scott case.
The Texas Eagle Forum brief warns of “a badly fractious effect” if the Court declares that “the Bible is wrong about marriage,” drawing out “regional differences” similar to the regional divide over slavery before the Civil War. The group warns that, like Dred Scott, “any ruling by the Court that imposes homosexual marriage on Texas and every corner of the United States would cause vastly more conflict, along regional lines.”
In 1857, as now, there were sharp regional differences over a fundamental social issue. But rather than allow Congress to sort the disputes out, the Supreme Court overstepped its bounds and attempted to dictate one solution nationwide about slavery. That poured fuel on the fire, as history teaches. Likewise, any ruling by the Court here that attempts to establish homosexual marriage for every region of our country, thereby declaring that the local voters are wrong, their political leaders are wrong, and the Bible is wrong about marriage, will have a badly fractious effect.
The disunity will greatly worsen if the Court rules that Texas and other southern states must begin performing homosexual marriage. Far from unifying the Nation, as some argue, such a Court ruling would have a divisive effect similar to that of the Dred Scott decision. The Dred Scott Court felt that by imposing its view of slavery on the entire Nation, the Court was resolving the conflict. In fact, of course, the decision made the conflict far worse. Likewise, any ruling by the Court that imposes homosexual marriage on Texas and every corner of the United States would cause vastly more conflict, along regional lines.
Texas Eagle Forum specifically argues that the supposedly unbiblical nature of same-sex marriage would “be disastrous for the unity of our Nation” because the Bible is “the strongest link that holds our society together.”
The Bible is perhaps the most unifying force of our Nation.
A Supreme Court ruling that endorses homosexual marriage would directly conflict with clear teachings in both the Old and New Testaments. See, e.g., Genesis 2:24 (“Therefore a man shall leave his father and his mother and hold fast to his wife, and they shall become one flesh.”) and Mark 10:6-8 (“But from the beginning of creation, ‘God made them male and female.’ ‘Therefore a man shall leave his father and mother and hold fast to his wife, and the two shall become one flesh.’”) (ESV). In essence, the Court would be rejecting the Bible as false, and by implication perhaps even disparaging the Bible as hate speech. Whether the large percentage of Americans who respect the Bible would be persuaded by such a ruling remains to be seen. But if they are persuaded, then the results would be disastrous for the unity of our Nation, because it would weaken the strongest link that holds our society together.
3. Marriage Equality Is Bad For Gay People’s Kids Because Right Wing Watch Criticized Robert Oscar Lopez
There was a big splash in the right-wing media when four adults who were raised for at least part of their lives by same-sex couples, most prominently activist Robert Oscar Lopez, submitted an amicus brief against marriage equality.
Lopez cites one flawed study about same-sex parenting and uses it as a jumping-off point for discussing what he speculates is a trend toward things getting “harder, not easier” for children raised by same-sex couples as “gay marriage has become a broader and more accepted phenomenon."
It has gotten harder, not easier, for COGs [Children of Gays], to the extent that gay marriage has become a broader and more accepted phenomenon. The younger generation of COGs has lived with an enormous amount of surveillance and speech policing by people interested in ensuring that they say nothing to undermine the social prestige of their gay guardians. The younger generation of COGs seems to feel more uprooted from the missing half of their ancestry and more fearful of defying the authority of gay stepparent figures whom they still tend to view as stepparents even if they are fond of them.
COGs are now 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. All of this is emanating from within the gay community, enabled by complacent groups such as COLAGE and emboldened by the gay-marriage equality movement. Put simply, the situation for COGs has worsened as their numbers have multiplied.
Lopez’s main piece of evidence for the “heightened discrimination/harrassment/retaliation” being directed at the children of gay parents since those parents began to gain marriage rights seems to be his own experience being criticized by blogs, including Right Wing Watch, which he details at great length in a separate section of the brief.
2. It’s Okay To Discriminate Against Women, So Why Not Gays?
Mark Joseph Stern at Slate flagged a brief submitted by the state of South Carolina which illustrates at length the concern that the drafters of the 14th Amendment had about it granting rights to women. Since the state at the time sought to discriminate against women, the brief argues, then it is absurd to apply the amendment’s protections to gay and lesbian people who want to get married.
Here’s a representative paragraph:
Nor did the framers and their contemporaries conceive that the definition of marriage consisted of anything other than the union between man and woman. Indeed, the framers insisted upon leaving untouched those state laws depriving women of basic rights upon marriage to a man. Surely then, those state laws exclusively defining marriage as between a man and woman were hands off under the Amendment’s original meaning.
Representatives from the South Carolina solicitor general’s and attorney general’s offices followed up with Stern to clarify that “that their state does not wish to implement the sexist laws outlined in its brief—though it could if it wanted to.”
1. Marriage Equality Will Cause God To Destroy America
Really any constitutional argument you can come up with becomes irrelevant if we are threatened with God’s judgement on America. A coalition of right-wing groups (two of which have close ties with Alabama Chief Justice Roy Moore), pulled out that trump card in a brief in which they warn the Justices that should they “require the States and the People to ‘ritualize’ sodomite behavior by government issuance of a state marriage license, it could bring God’s judgment on the Nation.”
The groups, including Public Advocate of the United States and the Institute on the Constitution (run by longtime Moore funder and Maryland GOP official Michael Peroutka) and assisted by former Moore collaborator Herb Titus, assure the Justices that the warnings of Leviticus are still very much in effect:
Should the Court require the States and the People to “ritualize” sodomite behavior by government issuance of a state marriage license, it could bring God’s judgment on the Nation. Holy Scripture attests that homosexual behavior and other sexual perversions violate the law of the land, and when the land is “defiled,” the people have been cast out of their homes. See Leviticus 18:22, 24-30. Although some would assert that these rules apply only to the theocracy of ancient Israel, the Apostle Peter rejects that view: “For if God ... turning the cities of Sodom and Gomorrha into ashes condemned them with an overthrow, making them an ensample unto those that after should live ungodly.” 2 Peter 2:4-6. The continuing application of this Levitical prohibition is confirmed by the Book of Jude: “Even as Sodom and Gomorrha, and the cities about them in like manner, giving themselves over to fornication, and going after strange flesh, are set forth for an example, suffering 1 Kings 14:24. 41 the vengeance of eternal fire.”