Next week, the justices of the Supreme Court will hear arguments for and against marriage equality. But hundreds of people have already tried to help the justices make up their collective mind by filing amicus briefs, which are "friend of the court" documents that offer unsolicited advice or information about the issues at stake in the case. Some of the briefs against national recognition of same-sex marriage get pretty creative — from arguing that it would lead to nearly a million abortions to claiming it would destroy the economy.
Just about anyone can file this kind of brief, and just about anyone has. There are well-established advocacy groups, and there are solo citizens who declare their qualifications as being married for 45 years, or being a “commercial property owner and citizen” who is “directly impacted by surrounding neighbors’ actions.”
Plenty of anti-marriage equality briefs focus on states’ rights to limit marriage and when courts should overrule ballot measures, or the historic scope of the 14th Amendment’s due process and equal protection clauses. But just in case those theories can't get five votes, opponents of marriage for same-sex couples have helpfully provided the smorgasbord below.
1. Marriage equality will kill people. The group Mike Huckabee Policy Solutions — which says it is “neither authorized, funded, directed nor controlled by Gov. Huckabee,” but simply advocates for his views — teamed up with Paul Cameron, an anti-gay researcher who has been repudiated by the major social science organizations, to make this argument. They are concerned that “Justice Kennedy is apparently unaware of the strong scientific linkage that has been documented between same-sex marriage and early mortality.” The authors claim that “individuals who engage in homosexuality” die younger. They perused newspapers for “homosexual obituaries” to measure whether being partnered at the time of death had any impact on the age a person died. Since they got inconclusive results, they conclude that marriage won't make gay people live longer.
2. Marriage equality will cause more opposite-sex couples to break up. Many briefs argue that recognition of same-sex marriage will ruin marriage for everyone. "After all,” a brief co-authored by National Organization for Marriage co-founder Maggie Gallagher explains, “if society understands marriage to exist predominantly for adult happiness” — which they say is the major rationale for recognizing same-sex unions — “then the idea of sticking through hard times for the good of others, be it children or a spouse, will decline further.”
3. Marriage equality will cause 900,000 abortions. A brief from “100 Scholars of Marriage,” led by a former clerk of Justice Antonin Scalia, takes that same highly suspect argument that heterosexual marriage will decline if more states recognize the rights of gay couples. Combining that with the unrelated data point that the abortion rate is higher among unmarried women, the "scholars" predict that “under reasonable assumptions,” the Supreme Court’s recognition of marriage for same-sex couples would lead to “nearly 900,000 more children aborted” in the next 30 years. The authors explain, “The mechanism is simple and intuitive: Fewer opposite-sex marriages means more unmarried women, more children born to unmarried mothers, fewer total children born, and more children aborted.”
4. Marriage equality would destroy the economy. These "scholars of marriage and fertility” claim in their brief that, by implying that marriage is about more than "biological procreation," same-sex marriage would mean everyone would have fewer babies, which in turn would "over time result in a reduced demand for goods and services and an aging work force, which results in fewer available workers to support social programs.”
5. Marriage equality means that kindergartners will be taught that same-sex marriage is a “status to which they should aspire.” The Lighted Candle Society, co-founded by former Reagan attorney general Edwin Meese, asks, “What will kindergarteners [sic] be taught?” Already, the brief says, “Johnny is being taught that before he marries a girl, he may want to consider marrying another boy. Susie is being taught that before she marries a boy, she may want to marry another girl. The lesson is that marrying someone of the same gender is a ‘good thing.’” The Supreme Court ruling for the same sex couples, they say, “would enshrine Queer Critical Theory (which says there are no real [gender] differences) into the Constitution.”
6. Marriage equality will harm the children of same-sex couples in particular. The last time marriage rights were at the Supreme Court, in 2013, key swing voter Justice Anthony Kennedy expressed concern for children who “live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think?” Other voices of such children have accordingly stepped forward — ones who oppose their parents having “full recognition and full status.” One is Denise Shick, who says her transgender father physically abused her, but that “perhaps the worst thing he did was to fail to provide a fatherly, male role model, instead living out a ‘female identity’ called ‘Becky’ and dressed as a woman.” A separate brief filed by California State University professor Robert Oscar Lopez says that his “history of accepting money for sex from male strangers and other high-risk, self-destructive behavior in public parks, university libraries, and supermarket restrooms … was driven by a feeling of incompleteness and an unacknowledged longing for my father, who simply could not be replaced by my mother’s lover.”
7. Marriage equality is like racial segregation. This comes from Lopez's brief, co-signed by B. N. Klein. “The homes in which COGs” — their shorthand for “children of gays” — “live represent segregated living spaces because one sex is explicitly excluded; the two adults define their very identity according to their unwillingness to be intimate or share space with the opposite sex. Living for long stretches of their lives in segregated domestic spaces, COGs experience much of the same loss and alienation that occurred in other settings — such as schools, stores, neighborhoods, or churches — that were racially segregated.”
8. Marriage equality will discriminate against women, especially poor women. Klein added that because some gay couples start families via surrogacy, marriage equality will lead to "more reproductive prostitution, for-profit commodification of humans, and a form of indentured servitude forcing unequal conditions on women as a class.” Gallagher et al's brief says if same-sex couples are allowed to marry throughout the country, “women in underprivileged communities — and their children — suffer the most.” How? It's not really clear. “If the redefinition of marriage further undermines marriage’s vital role in connecting sex, procreation, and childrearing or in linking men to both their children and their children’s mothers, it is reasonable to anticipate that this social change will inflict harm on these groups above all others," they write.
9. Marriage equality will undermine men attracted to men who are married to women. The group behind this theory describes itself as “same-sex attracted men and their wives.” These men say that while “they do not have a choice about their attractions, they do have a choice about their relationships.” (One of them, “Joshua,” is quoted in the brief saying of his marriage, “Our sex life has been amazing from day one.”) These men argue that a marriage equality win would imply that “for the same-sex attracted, 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.”
10. Marriage equality will undermine heterosexual men. Several briefs make this argument. The Gallagher brief says that “the redefinition of marriage will transform marriage —society’s core family structure — to make men’s involvement ancillary and optional. Therefore, this will likely alienate men from marriage and family life, causing ‘an increase in men who live outside marriage and parenthood altogether.’”
11. Marriage equality is unnecessary because gay people are already so powerful, they don’t need it. The state of Ohio, a party to this case, has actually made this argument, as has the Concerned Women for America. "Homosexuals are not politically powerless,” CWA writes, and thus do not require protection. They concede that “presently, homosexuals certainly lack absolute numbers for political power ‘when viewed in the abstract.’” But the group points out that Obama is pro-gay rights and in 2012, Wisconsin’s Tammy Baldwin was elected the first openly gay senator.
12. Marriage equality shouldn’t happen, because sexuality can be fluid. Several briefs argue that because sexuality may not be an “immutable characteristic” like race, it doesn’t deserve legal protection. “There is some malleability in sexual orientation, especially among women,” argues the group Texas Values. Parents and Friends of Ex-Gays makes the same point. But marriage equality will allegedly make life harder for people with that fluid sexuality who want to "leave homosexuality," argues an individual named Jon Simmons: “Too bad for those struggling with same sex attraction, for the remedies of religion, psychology, and recovery groups will be removed from them. Too bad for the children who yet have to embrace a sexuality.”
13. Marriage equality should be avoided because Alfred Kinsey’s work was problematic. The brief from Dr. Judith Reisman takes issue with some courts citing Kinsey’s research on sexuality or anyone who built on his work, which she argues was guided by “an ideology built upon the sexual abuse of infants and children, and the libeling of the ‘Greatest Generation.’” As such, “this Court should not permit the institution of marriage to become the latest victim of the Kinseyan model of American society.”
14. Marriage equality would “perhaps even” be hate speech against the Bible. The Texas Eagle Forum notes that “the Bible is perhaps the most unifying force of our Nation,” because among Americans, “79% consider the Bible to be sacred or holy, and 50% feel the Bible contains everything they need to know to live a meaningful life.” Compare that to how many people voted in the last election, they point out. As such, a ruling for marriage equality would be divisive, and “in essence, the Court would be rejecting the Bible as false, and by implication perhaps even disparaging the Bible as hate speech.”