In a short series, I will profile several individual amicus briefs filed in the same-sex marriage cases currently consolidated before the U.S. Supreme Court and slated for oral argument on April 28, 2015.
In the same-sex marriage cases currently before the Supreme Court (consolidated as Obergefell v. Hodges), already nearly one hundred amicus (or "friend of the court") briefs have been filed. The vast majority so far are in support of the petitioners - same-sex couples from Kentucky, Michigan, Tennessee, and Ohio. Amicus briefs in favor of the respondents - the states - are due at the end of March.
One of the amicus briefs in favor of the petitioners was filed by the NAACP and the NAACP Legal Defense & Educational Fund through counsel John Paul Schnapper-Casteras, Sherrilyn Ifill, Janai Nelson, Christina Swarns, Jin Hee Lee, Rachel M. Kleinman, Marshall W. Taylor, and Khyla D. Craine.
The brief focuses almost entirely on Loving v. Virginia, the landmark 1967 Supreme Court case that struck down state bans on interracial marriage, called "anti-miscegenation" laws. States defending their bans on gay marriage have frequently attempted to distinguish Loving on the basis that it: 1) dealt only with issues of race; 2) dealt with a criminal law, not a civil ban; 3) assumed that any "fundamental right" to marriage applies to different-sex marriage only; or 4) some combination of those three.
The NAACP brief tackles those arguments head-on, and goes further to point out that the states' arguments today against same-sex marriage are largely identical to the arguments made against interracial marriage before 1967. The states appeal to tradition. They claim the federal courts have no power to restrict state marriage laws. They argue that allowing same-sex couples to marry will endanger children. And they argue that same-sex marriage is such a radical concept that society must not be forced to accept it overnight.
First, a history lesson:
The parallels between the arguments against interracial marriage and same-sex marriage are clear, and the NAACP brief does good work making that point. Furthermore, the brief notes that, "since Loving, none of the social or genetic harms crudely predicted [before Loving] have come to pass." Public sentiment toward interracial marriage is the only thing that has changed. Only 4% supported interracial marriage in 1958, compared to 87% today.
The brief argues that the implications of Loving and the Fourteenth Amendment are not limited to issues of race alone:
The brief criticizes the reasoning of the Sixth Circuit in DeBoer v. Snyder that Loving is distinguishable because "it did not create a new definition of marriage." The NAACP argues that such a conclusion misses the point, and narrows the important affirmation of personal liberty that Loving embraces.
The brief's final section is devoted to dispatching every argument advanced by the states. First, tradition. The NAACP notes that the Supreme Court in 1967 was facing a very long tradition of anti-miscegenation laws in the United States. Many states' interracial marriage bans predated the Civil War and some predated the Revolution. Yet tradition alone cannot protect a law from constitutional scrutiny.
Next, the brief tackles the argument that state legislators or voters retain sole discretion when it comes to domestic policy:
Third, the brief attacks the idea that same-sex marriage bans are rational because the purpose of marriage is to promote responsible procreation or is otherwise linked to the ability to reproduce. "Nowhere did Loving link the right to marry to a couple's ability to procreate," and other Supreme Court decisions, "have made clear that the right to marriage...is...an expression of emotional support and public commitment."
Finally, the NAACP confronts an argument made by Idaho governor Butch Otter in an amicus brief he filed in this case. He argued that same-sex marriage bans do not discriminate because they apply to homosexuals and heterosexuals equally. Both are prohibited from marrying someone of the same sex.
The brief concludes by noting the consistency of "protect the children" arguments made by states in defense of both anti-miscegenation laws and same-sex marriage bans. Before 1967, states like Virginia argued that they had a legitimate interest in preserving racial integrity and discouraging the creation of a "mongrel breed of citizens." The Court in Loving denounced these arguments as "obviously and endorsement of the doctrine of White Supremacy." Arguments today warning that same-sex couples are bad parents or morally incapable of raising responsible children are similarly nonsensical. Social and biological scientific consensus is clear: same-sex couples are perfectly fit to be parents and should be allowed to raise children with an underlying marital foundation.