NOM Files Amicus Brief Defending Californians Right to Vote for Marriage


NOM's dynamite amicus brief has just been filed with the 9th Circuit. You can read the full brief here, or enjoy the excerpts below.

As Brian Brown told the press, “To reach his unjust decision, Judge Walker had to ignore law, history, social science, and common sense,” said Brian Brown, “He implicitly labeled as irrational bigots not only 7 million Californian voter, but the majority of judges who have ruled on this issue. To up the ante he made it clear that Catholics and Southern Baptists are also now irrational haters under the law. We are calling on the 9th Circuit to reverse this travesty of justice, and to restore to Californians a precious right that has been taken away: the right to vote for marriage.”

In addition to filing this amicus brief, NOM’s Legal Defense Fund is helping the litigation effort by directly funding part of the Prop 8 litigation expenses. If you can help us in this fight, you can donate here.

Key excerpts from the NOM Amicus Brief

“[T]he plaintiffs in this case have made it clear the harm they allege, quite apart from any practical consequences, is the harm of having their relationships excluded from the “social meaning” of marriage.  They want this court to short-circuit the hard task of persuading their fellow citizens that their unions ARE marriages, by asking this court to re-educate the voters and re-assign the meaning of a word.”

“[S]ame-sex marriage works a profound change in the public meaning of marriage; this change in public definition from “sexual union of male and female” to “union of any two persons” clearly severs the connections between marriage and its core historic civil mission: increasing the likelihood that children will be born to and raised by their mother and father.  If it is rational for the plaintiffs to be concerned about the meaning of the word, it is rational for 7 million California voters to be concerned as well.”

“Sexual unions of male and female are unique: they alone can make new life, and when they do so will either connect (or disconnect) children from mothers and fathers. . .The vast majority of children are conceived through acts of sexual passion; marriage provides a means to help society regulate this passion so that children do not get hurt.”

“How does marriage as an enduring and exclusive sexual union of male and female serve the state’s interest in procreation and child well-being? The connection is two-fold:  First, every child conceived by a married couple begins life with a mother and father precommitted to caring for him or her together. Almost no child conceived in any other sexual union receives this great benefit.  In addition, every person who remains faithfully married, whether they have children together or not, is much less likely create fatherless children in alternate relationships. Every married couple minimally serves the public purpose of marriage and none contradict the link between marriage and procreation.”

“Two ideas are in conflict here: one is that children deserve mothers and fathers and marriage is intrinsically oriented towards serving this vital purpose. That is the classic marriage idea. The other idea is that adult interests in forging romantic relationships of choice (i.e., to marry the person they love) are more important than recognizing and protecting the natural family. This latter idea is at the heart of the idea that same-sex marriage is a civil right. And it is the core idea that must be rejected if the state’s interest in marriage is to be sustained.”

“[A]s a matter of hard historical fact the inclusion of elderly and childless couples never in the minds of judges or the public challenged the connection between marriage and procreation, but advocacy of same-sex marriage clearly does so.

Elderly couples and childless couples are all part of the natural lifecycle of marriage. They do not contradict the idea that a key purpose of “an enduring, exclusive sexual union of male and female” is responsible procreation. By contrast, the forced inclusion of same-sex couples into the category “marriage” will be a dramatic transformation in the meaning of marriage in law, and as the law influence cultural norms, in the public mind.”

[E]ven many gay marriage advocates have also agreed it will radically transform marriage. . . Judith Stacey, predicts: “Legitimizing gay and lesbian marriages would promote a democratic, pluralist expansion of the meaning, practice, and politics of family life in the United States, helping to supplant the destructive sanctity of The Family with respect for diverse and vibrant families.” . . . Philosopher Joseph Raz of Columbia Law School explains it bluntly: ‘[T]here can be no doubt that the recognition of gay marriage will affect as great a transformation in the nature of marriage as that from polygamous to monogamous or from arranged to unarranged marriage.’ Joseph Raz, Ethics in the Public Domain 23 (1994) (DIX1444). . . . .When many gay marriage advocates and opponents  can both strongly agree that a redefinition of marriage is “breathtakingly subversive” and would fundamentally transform the institution of marriage, the people of California cannot be faulted for taking them at their word.”

[T]he trial court essentially validated the worse fears of voters. In its decision below, the district court first eliminated procreation from the history of marriage altogether, then privatized this purpose of marriage, and finally attempted to stigmatize those who hold that view as irrational bigots. . . . . not only will the law find it more difficult to connect mothers and fathers with children, but civil society will as well under the weight of such judicial disapproval as was expressed in the trial court opinion. See, e.g., Doc. 708 at 101 (#77) (finding traditional religious beliefs about sex and marriage to be irrational in themselves and harmful to gays and lesbians).”

“We’ve been through this cycle before, in other words. The unintended consequences of changing family laws have already been myriad, hard to predict, and have often fallen on those least able to bear them.  Constitutionalizing the idea that children do not need a mother and father, that marriage can bear such a dramatic change in public definition with no ill-effects, is a very bad idea, because it is so hard to retreat, modify, or adapt if negative consequences result.”

“[Judge Walker’s] rulings reinforces the legitimacy of our concerns. The district court has come up with its own new definition of marriage, one passed by no legislature, with no roots in our jurisprudence, based on one single historian’s opinion, and which centers on adult needs and desires: “Marriage is the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents.” Doc. 708 at 67 (#34).

This definition hardly describes a robust institution that protects children’s interest in ties to their biological parents in a stable relationship. It is instead, a minimalist description of a relationship without any significance beyond its importance to the two people forming the couple, which—inexplicably—is  then given government recognition and also government’s Housekeeping Seal of Approval.”

“Plaintiffs and the court below suggest that the mere word marriage is enough to provide dignity to same-sex couples, but at the same time so powerless that the only rational view is to believe its messages will have no effect on attitudes and behaviors regarding children and the family. This is an intellectually untenable position, yet it forms the foundation for the district court’s unjust allegations of animus levied against California’s voters.”

“Sisters can cohabit and commit, and so can best friends in nonromantic relationships.  Three people can cohabit and commit, too. Why can’t these people claim marriage as well? Once a key feature of marriage has been deconstructed, other historic features of marriage will become much harder to explain and defend, both in law and culture.”

On the social science evidence:

“A broad and deep body of evidence shows that:

[F]amily structure matters for children, and the family structure that helps the most is a family headed by two-biological parents in a low-conflict marriage. Children in single-parent families, children born to unmarried mothers, and children in stepfamilies or cohabiting relationships face higher risks of poor outcomes. . . . There is thus value for children in promoting strong, stable marriages between biological parents.

Kristin Anderson Moore, et al., “Marriage from a Child’s Perspective: How Does Family Structure Affect Children and What Can We Do About It?” Child Trends Research Brief, June 2002, at 1.

Linda J. Waite, a sociology professor at the University of Chicago, testifying before the High Court of Ireland in Dublin in 2006, reiterated these findings, explaining that “two biological parents in a married low conflict relationship are the best environment for child development.” Zappone v. Revenue Commissioners, IECH 404 at 88 (2006), transcript of hearing Oct. 6, 2006 (testimony of Linda J. Waite).

Dr. Waite went on to note an analogous issue in family policy:

I think when the United States was debating changes in divorce laws, it was firmly believed by child development specialists at the time that as long as children had a loving parent, at least one, that they would be fine if their parents divorced, they would get over it quickly and move on with their lives.  Over the last 30 or 40 years, I think evidence has slowly but very steadily accumulated that this is not at all the case, that divorce plays a much larger roles in children’s lives, in their emotional well-being, in their career and personal accomplishments as adults even through their 30's, and none of that was known or expected at the time.

Id. at 94.

By contrast the literature on gay parenting is very new, studies limited outcomes, and typically uses non-probability samples, such that they are unable to provide a representative sample of the general population of gay and lesbian parents. . . at least one recently published study of adult daughters of gay or bisexual fathers found that “women with gay or bisexual fathers were significantly less comfortable with closeness and intimacy [ ], less able to trust and depend on others  [ ], and experienced more anxiety in relationships [ ] than women with heterosexual fathers.” Theodora Sirota, “Adult Attachment Style Dimensions in Women Who Have Gay or Bisexual Fathers,” 23(4) Archives of Psychiatric Nursing 289-97 (August  2009)  (The author speculates the reason for this gap in well-being is attributable more to the failures of mothering, or to homophobia, than to defects in gay fathering).”

“The case for the natural family is far from scientifically discredited. The intellectual and scholarly debate should be allowed to continue without a pre-judgment by this court that it is grounded in nothing more than irrational bigotry.”

“At the end of the day, the trial court stands without support for its confident prediction finding it to be ‘beyond debate’ that same-sex marriage ‘will have no adverse effects on society or the institution of marriage.’”

You can read the complete brief here and please consider supporting and asking your friends to support our efforts by donating here.