At The Foundry, the news blog of The Heritage Foundation, Ryan Anderson reports that briefs filed on behalf of marriage offer a Broad, Diverse Defense of Marriage at Supreme Court.
Scholars have filed more than 50 amicus briefs with the Supreme Court urging it to uphold California’s Proposition 8 and the federal Defense of Marriage Act (DOMA). While the media seems intent on ignoring these briefs and hyping the briefs on the other side, the sheer number and quality of the briefs in defense of laws recognizing marriage as the union of a man and a woman is impressive.
Anderson quotes Austin Nimocks, Senior Counsel at the Alliance Defending Freedom:
During the Supreme Court’s 2011-2012 term, an average of only 10 amicus briefs per case were filed. And in the historic landmark case of Roe v. Wade, only 26 total amicus briefs were filed.
By comparison a combined total of 58 amicus briefs were filed in support of Prop 8 and DOMA. The pro-marriage arguments are deep, rich, well-reasoned, common sense- and common good-based, and worthy of serious reflection by the Court and any other American interested in the future of our most important social institution.
He quotes several of the briefs, and links to a 3-page PDF list from the Alliance Defending Freedom of 31 of the briefs: Selected friend-of-the-court briefs submitted to the U.S. Supreme Court in Hollingsworth v. Perry. The table includes links and a description of the arguments in each brief. I recommend looking at it to see if any specific ones interest you. For example, Professor Helen Alvare’s argument is described as “Government’s purpose for marriage.” This is from page 13 (PDF page 24) of her brief.
Moreover, for over 100 years, this Court has reiterated the relationship between marriage and childrearing for the benefit of a functioning democracy. In Murphy v. Ramsey, for example, this Court opined:
For certainly no legislation can be supposed more wholesome and
necessary in the founding of a free, self-governing commonwealth . . .
than that which seeks to establish it on the basis of the idea of the
family, as consisting in and springing from the union for life of one man
and one woman in the holy estate of matrimony; the sure foundation of all
that is stable and noble in our civilization; the best guaranty of that
reverent morality which is the source of all benefit progress in social
and political improvement.
I find it helpful and encouraging to know that Supreme Courts in the past clearly understood the importance of marriage to the well-being of children and the well-being of society. This and her quotes from other cases provide answers to those who question why government should have any involvement in marriage and why marriage laws can have a significant impact on society.
I will add links here to any future posts by Anderson on these briefs so check back in.
UPDATE: Other articles on the amicus briefs that have been filed:
…In the amicus brief submitted to the Supreme Court by the Center for Constitutional Jurisprudence, former Attorney General Edwin Meese and constitutional law scholar John C. Eastman defend the constitutionality of Prop 8. (Read Prof. Eastman’s Heritage Legal Memo on marriage here.).
The current legal challenges to Prop 8 undermine citizens’ democratic authority protected by the California Constitution and years of judicial precedence. Meese and Eastman explain the importance of the initiative process in California to ensuring a responsive government:
The California Supreme Court has described the initiative power in California as central to ensuring that the government is responsive to its citizens, and as “one of the most precious rights of [California’s] democratic process.” Initiatives in California are designed to circumvent unresponsive government officials who wield the power to create law.
Citizens have good reasons for wanting the government to get marriage policy right. Meese and Eastman explain that “marriage is and always has been about much more than the self-fulfillment of adult relationships, as history, common sense, legal precedent, and the trial record in this case itself demonstrate.” They go on to explain that “the institution of marriage is the principle manner in which society structures the critically important function of procreation and the rearing of children.”
A group of social science professors present the scholarly research on a child’s need for a married mother and a father in a brief submitted to the Supreme Court.
…Recent studies claiming that children raised in same-sex homes are “no different” from those raised in traditional homes are seriously flawed…
What we do know, reliably and conclusively, is that married biological moms and dads matter to children. As the brief states:
It is not simply the presence of two parents…but the presence of two biological parents that seems to support children’s development.… Experts have long contended that both mothers and fathers make unique contributions to parenting.
The professors present a great deal of scholarship showing that mothering and fathering are different. The mother plays a critical role in a child’s neural development, communication, sense of security, problem solving, understanding and responding to feelings, and social ties to both friends and family.
The father’s involvement is linked to positive outcomes in education, physical health, and avoidance of juvenile delinquency. Children who “roughhouse with their fathers” learn that certain violent behavior is unacceptable. Fathers encourage exploration and discourage boys from “compensatory masculinity where they reject and denigrate all that is feminine and instead…engag[e] in domineering and violent behavior.”
Severe flaws and limitations exist in the scientific research into the relatively new phenomenon of same-sex parenting, argue preeminent political scientists Leon R. Kass and Harvey C. Mansfield in a brief filed with the Supreme Court by Nelson Lund.
The scholars urge the Court not to redefine marriage based on the new and inconclusive research. The academic studies on same-sex parenting purporting to show “no differences” are, Kass and Mansfield argue, “subject to severe constraints arising from limited data” and a lack of “replicable experiments.”…
Kass and Mansfield highlight late Senator Daniel Moynihan’s (D–NY) statement that “social science is rarely dispassionate, and social scientists are frequently caught up in the politics” surrounding their work. The current political climate has influenced much of the existing research on issues regarding same-sex parenting.…
If the Supreme Court justices—wrongly—look to foreign law to resolve the question of whether marriage may be defined as the union of one man and one woman, they will discover that the traditional definition of marriage is almost universally followed.
An amicus brief filed with the Court by a group of international jurists and academics makes just that case.
These scholars point out that not until the year 2000 did any political body recognize same-sex unions as marriages, and even today only 12 jurisdictions outside the United States do so. They argue that “same-sex marriage is not required by international human rights norms”:…
Religious liberty doesn’t stop at the church doors. The Becket Fund for Religious Liberty, the nonpartisan public-interest law firm dedicated to protecting the free expression of all religions, filed an amicus brief with the Supreme Court making the case that legal recognition of same-sex relationships as marriages creates hazards for religious liberty, particularly when courts impose a redefinition of marriage.
Via Ed Whelan at NRO’s Bench Memos, in Religious Liberty and the Same-Sex Marriage Cases: the Arguments The Becket Fund has posted its analysis of the briefs arguing against its position. It divides them into four basic groups, summarizes them, and concludes:
To sum up, the question of religious liberty is very much before the Court, despite the parties’ relative silence. The briefs submitted in opposition to our amicus brief contradict each other—some say nothing to see here, move along; others say there are religious liberty problems but they are justified, or that they just need watching. None of them convincingly refute our brief….
The marriage debate is about more than romance between adults. Society’s interest in the upbringing of children and marriage’s unique ability to serve that interest explains the government’s involvement in the institution, argues Helen Alvare, a law professor at George Mason University and a leading expert on marriage and family law, in an amicus brief filed with the Supreme Court:
This Court has repeatedly described states’ interests in marriage[:]…(1) stable commitment between intimate, opposite-sex pairs of adults, (2) the procreation and the rearing of children, and thereby, (3) the formation of a decentralized, democratic society.
Tracing the consequences of the past half-century’s “retreat from marriage” and its disparate effects on America’s poor, Alvare argues that redefining marriage to exclude sexual complementarity would only further weaken the marriage culture among the poor, who already marry less, divorce more, experience lower marital quality, and have far more nonmarital births than those in the middle and upper classes.
The recognition of marital benefits to adults has never been separated from the responsibility to children. However, the proponents of redefining marriage seek to artificially separate these two integral aspects of marriage. Removing sexual complementarity as an essential aspect of our understanding of marriage is fundamentally at odds with America’s prior history of judicial, legislative, and societal treatment of marriage.