How Marriage Equality Opponents’ Arguments Are Getting Turned Against Them


In 2012, children of same-sex couples joined the Family Equality Council in ringing the closing bell at the New York Stock Exchange.


Last Friday was the deadline to submit amicus briefs to the Supreme Court in support of marriage equality. Over 60 different briefs were filed by various “friends of the court,” including coalitions, organizations, scholars, and individuals. Contained within them are a variety of arguments in favor of recognizing same-sex couples’ right to marry, ranging from the more legal and technical to the more historical, personal, and even quirky.

A few of these briefs made headline news. The Obama administration submitted a brief through the Department of Justice urging the Court to apply heightened scrutiny, which would make sexual orientation a protected class like sex. Nearly 400 companies informed the Court that marriage equality helps them recruit and retain talented employees, making it good for business and the economy. The Human Rights Campaign filed a “People’s Brief” featuring 200,000 signatures of support for marriage equality. There were also briefs from 226 mayors and 40 cities, over 200 members of Congress, and over a dozen states, all asserting that marriage equality is good law and good for the country.

But among the briefs were more subtle arguments and specific considerations that paint a more nuanced picture of just how the country will benefit from having marriage equality in all 50 states. In particular, many focused on themes that used to be reserved for arguments against same-sex marriage. Even if these less-legal arguments may not ultimately impact the Supreme Court’s ruling, they can still help inform the debate.


Social conservatives still argue that because only different-sex couples can biologically produce children, only they should be allowed to marry, but children now present a compelling case for same-sex couples’ right to marry as well. Even Justice Anthony Kennedy, who wrote the Court’s opinion in Windsor overturning the federal Defense of Marriage Act (DOMA) and is the expected deciding vote in the new set of cases, wrote some of his strongest pro-equality rhetoric about the needs of children. DOMA, he wrote, “humiliates tens of thousands of children now being raised by same-sex couples,” making it more difficult for them to “understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”

The “Voices of Children” brief, filed by the Family Equality Council and COLAGE, highlights the tens of thousands of children being raised by same-sex couples who have benefited or could benefit from their parents marrying, including Kinsey Morrison, an 18-year-old freshman at Stanford University. Morrison and her two younger sisters were raised by their two moms in Kentucky and they hope that their moms will be able to get married. “The question before the Court is not what kinds of families are best,” the brief argues. “The question is whether there is a legal basis for depriving these children of the protections and security that the Sixth Circuit and Respondents offer as the very reason marriage exists.”

Accentuating the “Voices of Children” brief’s position that marriage equality has never harmed anyone, the American Sociological Association (ASA) has filed a brief confirming the consensus of social science research on same-sex parenting. Mirroring a similar brief filed in the Windsor case two years ago, the ASA asserts, “Children raised by same-sex parents fare just as well as children raised by different-sex parents,” noting that this evidence has been introduced in courts across the country. The brief proceeds to debunk studies that purport to find otherwise, like the one by Mark Regnerus. “Claims by Marriage Opponents about the well being of children are unsupported by any social science study published to date,” it concludes. “Their claims neither undermine the social science consensus nor establish a basis for upholding the Marriage Bans.”

Adoption organizations also expressed their support for letting same-sex couples marry. A brief filed by groups like the Donaldson Adoption Institute, the Child Welfare League of America, the North American Council on Adoptable Children, and Voice for Adoption points out that children benefit greatly when same-sex couples can marry. Studies show that same-sex couples are far more likely to adopt or foster-parent children, but marriage laws often prevent those children from being legally connected to both parents. When couples can’t marry, they’re less likely to adopt, which keeps more children in the child welfare system. Moreover, the argument by equality opponents that biological-parent families are superior stigmatizes not just same-sex families, but all adoptive families. “Adopted children can grow up as happy and healthy as other children,” the brief states, and, “Adoptive parents, regardless of their sexual orientation, are just as capable of supporting and nurturing children as biological parents.”

Different-sex couples might be the only couples who can conceive children by having sex with each other, but they are not the only couples raising children. If the Court believes that marriage is designed to serve the best interests of children, then letting same-sex couples participate in that institution furthers that goal, at least according to both their own children and the experts who advocate on their behalf.

Religious Liberty

The language of “religious liberty” has largely been co-opted by conservatives in an attempt to justify discriminating against LGBT people based on religious beliefs, but many groups argue that their religious beliefs are actually already encumbered by bans on same-sex marriage.

For example, various Quaker groups (the Religious Society of Friends) filed a brief explicitly stating that they have been “struggling to accommodate their religious beliefs regarding equality and integrity in deciding what actions they should take with regard to members who wish to be married, some of whom are mixed gender couples and others who are same gender couples, in light of the bans in some states on same gender marriages.” Though the Friends have no written creed, they have worked to be “a welcoming faith community that treats everyone fairly and as equals,” including marrying same-sex couples. Same-sex marriage bans create “a real burden on the religious freedom of same gender couples” who wish to celebrate their marriage with their faith community. This is similar to an argument proffered by the United Church of Christ (UCC) when it challenged North Carolina’s marriage ban.

The Quakers are far from alone. Another brief from a large coalition of religious organizations emphasizes that “civil recognition of same-sex relationships through lawful marriage is fundamentally consistent with the religious pluralism woven into the fabric of American law, culture, and society.” Many religious traditions now ordain gay and lesbian clergy, welcome same-sex couples and their families, and affirm the inherent dignity of LGBT people, including their right to marry someone of the same sex and have that union solemnized in faith. This, they point out, has no implications for those with different views, whose anti-gay religious beliefs and traditions will still be protected under the Constitution. Signers of that brief include leaders of the Episcopal Church, the UCC, various rabbinical associations and synagogues, the Unitarian Universalist Association, Muslims for Progressive Values, and LGBT groups from Presbyterian, Methodist, and Lutheran denominations.

In fact, religious liberty has influenced the advance of civil marriage laws before. The California Council of Churches, joined by various other California-based religious organizations, points out that California’s ban on interracial marriage was overturned by the state’s Supreme Court based on religious freedom principles. In the 1948 case ofPerez v. Sharp, a Mexican American woman and African American man argued that the law banning their marriage interfered with their Catholic faith, and the Court agreed. When the U.S. Supreme Court took up Loving v. Virginia two decades later, Catholic bishops, who are now fierce opponents of same-sex marriage, urged the court to recognize that same religious freedom.

The California churches also highlight that the Court has previously ruled that despite the secular nature of civil marriage, limitations on it do burden the free exercise of religion. In the 1987 case Turner v. Safley, the Supreme Court ruled that prison inmates do not lose the right to marry, which it reaffirmed is “a fundamental right,” in part because “the commitment of marriage may be an exercise of religious faith.” The elements of free exercise and free expression, the court held, are “sufficient to form a constitutionally protected marital relationship in the prison context.” The California religious organizations know all too well from the passage of Proposition 8 what it is like to lose that free exercise, explaining, “The ability of clergy to serve their congregations was deeply impaired by the California law denying equal recognition to marriages of same-sex couples.”

While marriage equality does not force any church to recognize same-sex marriages, bans on same-sex marriage prevent couples from being treated equally outside many churches’ walls. Marriage equality thus promotes religious liberty some faith traditions, but does nothing to inhibit the religious liberty of others.

History and Tradition

“Marriage” has always been defined as the union of one man and one woman, opponents argue, and thus “same-sex marriage” is oxymoronic. Many groups have filed briefs that point out that history actually shows that not only has the definition of marriage changed quite a bit over time, but the same arguments against same-sex marriage were similarly — and ultimately unsuccessfully — employed to defend past forms of marriage discrimination.

A coalition of historians of marriage in the U.S., joined by the American Historical Association, filed a brief outlining the many ways marriage has changed over time. “The historical record contradicts attempts to cast marriage as serving any single, overriding purpose,” the historians write. “And it contradicts attempts to present marriage as a static institution so rooted in ‘tradition’ as to insulate it from constitutional challenge.” To the contrary, they note, “marriage has remained a vital institution because it is not static.” Rather than just serving the purpose of procreation, as opponents argue, marriage has helped regulate the population, create stable households, foster social order, increase economic welfare, legitimate children, assign providers to care for dependents, facilitate the ownership and transmission of property, and compose the body politic. It has also changed over time — due to the influence of Courts — to reflect evolving understandings for spouses’ roles and rights, particularly the equality of wives in the relationship.

Dismantling the racial barriers in marriage was also an evolution in its definition. As they did in the Windsor case, lawyers from the Howard University School of Law Civil Rights Clinic highlight how the same arguments against same-sex marriage were used to fight interracial marriage. Interracial marriage was once widely considered a threat to social order, and interracial couples were condemned as unnatural and pathological. Pseudo-scientific arguments and Judeo-Christian theological interpretations were similarly used to justify anti-miscegenation laws, just as they are used today to oppose same-sex marriage. Likewise, interracial parenting was also previously considered a threat to children, just as same-sex parenting is accused of being today. “There is nothing new in the arguments against same-sex couples having the freedom to marry,” they write. “No matter how much opponents of marriage for same-sex couples insist that ‘this time it is different,’ there remains an appalling familiarity to the refrain that allowing same-sex couples the same human dignity as everyone else will threaten social order, degrade individuals, and harm children.”

A group of family law scholars point out in a separate brief that laws against interracial marriage weren’t the only form of marriage discrimination that was justified with such myths. At the end of the 19th Century, some states passed laws prohibiting people with mental disabilities from marrying. The scholars observe, “Supporters defended them by claiming they optimized human reproduction and minimized the chances children would develop physical and psychological deficiencies.” When these child welfare fears were disproved, disability marriage bans were revealed as having “reflected invidious prejudices and a failure to accept the equal dignity of a class of citizens.”

History demonstrates a tradition of discrimination against gay men and lesbians that persists in various forms today. A brief from the Mattachine Society highlights specifically how the U.S. government itself targeted known homosexuals for discrimination during the Lavender Scare of the 1950’s and for decades hence. In a separate brief, the Organization of American Historians documents the history of anti-gay discrimination at the societal level, continuing to this day. “Like other minority groups before them,” the historians note, “gay men and lesbians often must rely on judicial decisions to secure equal rights over public opposition… History has vindicated the judges with the courage and foresight to declare certain emerging truths to be self-evident, even in the face of majoritarian hostility.”

With a vast array of evidence before them, the Supreme Court will be well-equipped to consider the question of marriage equality and the arguments from both sides on issues like the welfare of children, the cause of religious liberty, and the adherence to tradition. If history is any indication, the traditions of progress and justice will prevail.