In the months leading up to Tuesday’s oral arguments on whether states can ban same-sex marriage, individuals, groups, and governments were able to submit briefs to the Supreme Court either defending or refuting the bans.
The Supreme Court received a record number of amicus briefs for this case, as well as briefs from the four states defending their state bans: Kentucky, Ohio, Michigan, Tennessee.
The governors and attorneys general from Kentucky, Ohio, and South Carolina submitted briefs with particularly bizarre arguments defending state bans on gay marriage.
Kentucky
In a brief defending the state’s ban on gay marriage, Kentucky Gov. Steve Beshear (D) (pictured above) argued that the ban is not discriminatory because the state does not allow gay or straight people to marry someone of the same sex.
“Kentucky’s marriage laws treat homosexuals and heterosexuals the same and are facially neutral. Men and women, whether heterosexual or homosexual, are free to marry persons of the opposite sex under Kentucky law, and men and women, whether heterosexual or homosexual, cannot marry persons of the same sex under Kentucky law,” Leigh Gross Latherow, Beshear’s lawyer, wrote in the brief.
Ohio
Ohio Attorney General Mike DeWine submitted a brief defending the state’s ban on state marriage, arguing that gays and lesbians don’t need protections anymore.
DeWine wrote that gays have “‘attract[ed] the attention of the lawmakers at every level of government.” He argued that because gay people can gain so much attention from politicians, “any discrimination against them has been on a steady decline.”
He said that “protected class” status is only “reserved for those ‘relegated to such a position of political powerlessness.'”
South Carolina
In an amicus brief filed with the Supreme Court, South Carolina Attorney General Alan Wilson wrote that the framers of the Constitution did not intend to protect same-sex marriage, just as the Fourteenth Amendment was not originally written to protect women from discrimination.
Wilson said that when the Fourteenth Amendment was written, it was meant to ban discrimination based on race. He said the authors “insisted upon leaving untouched those state laws depriving women of basic rights upon marriage to a man.”
“The Fourteenth Amendment framers went to considerable lengths to preserve the traditional family unit, even insisting upon the subordination of married women. With this in mind, they did not, by any stretch of the imagination, contemplate that same-sex marriage was required by the Amendment or its Due Process Clause,” Wilson wrote in the amicus brief.
Wilson did note that South Carolina does not agree with view on women’s rights held by the authors of the Fourteenth Amendment.
“The historic evidence concerning the treatment of women, presented as the views of the Fourteenth Amendment’s framers are not those of the State today. Seemingly anachronistic, such evidence is, nevertheless, reflective of the Amendment’s original meaning which we believe controls this case,” he wrote.
Alabama submitted a brief … but the Supreme Court refused to accept a document written in crayon.
. These briefs were written by people who studied the Constitution in order to become lawyers? Facepalm!
…not if they got their Laws-a-Mercy degree from Liberty U or Oral Roberts U…
The article forgot Michigan. Michigan is defending it’s ban on gay marriage on a 2004 election proposal that voters supported indicating that marriage is between a man and a woman. That was eleven years ago folks. We here in Michigan have evolved on marriage equality too, but our AG doesn’t give a damn. The Michigan case is came about because two lesbians with special needs adopted children wanted to make sure that both of them were the parents. So they sued to be able to both adopt them equally. The judge told them they would be better suing over getting married. So that is what they did. I hope this comes out for marriage equality. I am so embarrassed by the RWNJs that have taken over Michigan.
Lawyers mostly don’t freelance on their own causes.
These briefs weren’t written by the top appellate counsel in the top firms made up of the smartest of the top graduates from the top law degree mills exactly, but that’s not the only or even necessarily the main reason they come across as so dumb. Part of the reason they look dumb is that they were ordered up for dumb causes and dumb positions with the only arguments available all being dumb ones.
The Kentucky brief is wondrously hilarious for the fundamentally denialist logic underlying its argument being nothing less than, A state law is constitutionally fine that requires throwing babies out to prevent the filthy little bastards from dirtying up our God-given bathwater.
It might take a little time to work thru the eye-stabbingly moronic rational for those relatively unfamiliar with the nature and precepts of The Rule of Law (which, IMO, most folks figure is like art, sure they’re not experts but they know what they like so WTF cares their opinions are as good as anyones). Suffice to say that the sort of twisted logic that says that a law that condemns to death all Jews is entirely constitutional because religion is a choice and the law itself applies to everyone, is actually MORE logically rational than whatever’s behind this Kentucky position if gender attraction and self-identification are NOT matters of so-called “preference” or at all analogous to religious choice.
The Ohio brief basically says, there’s basically no problem because stupid people assume it’s not just easier for LGBT types to get on cable talk shows to whinge, but that the combination of that access plus the whingeing is ‘constitutionally sufficient’, to … something. I mean the first part is unsupported and nuts, and the second goes into another universe to avoid doing anything, but the third part, where the room’s supposed to be all tied together, it’s just completely missing. This is just to placate the religiots and teapster crazoids by saying some stuff they think and say aloud on phone-in shows and post on Reddit and freerep and several hundred equally inane sites where a person can bathe in excrement and garbage and claim they’ve cleaned up…
The SC arugment’s not new to the SCOTUS, and it’s actually the one the wingnuts on SCOTUS, Scalia and Thomas, would like the best of this pathetic array. Problem is, while Thomas doesn’t give a shit, Scalia’s still got a few agendas down the line to protect and he actually DOES give a bit of a shit about getting his own words shoved down his throat in later cases; and beyond those 2, it might be possible to find some cleverer way to game Alito’s vote and if so Roberts would be in too, but Kennedy just HATES the implications of these sorts of Moses with the tablets arguments for his precious living breathing constantly evolving COMPLETELY FICTIONAL concept pet dog ol’ Liberty. And part of that distaste prevents from ever happening what Roberts and Alito would know is necessary to using this view of the 14th amendment, which is renewal of the Civil War.
The one place I’d disagree with the author of this post on is the pretty clear implication that these arguments are way off past Pluto into the Ort Cloud compared to the ‘better’ arguments that gay marriage opponents have available. No so.
The problem is all those other presumably more rational, coherent or sensible arguments require a SCOTUS majority that torches the separation guarantee, of a state separate from control by the religion of the majority, of churches separate from being arbitrarily destroyed by the state, and of there being multiple church choices in the first place.
Once that’s appreciated, one can more readily understand why there are other dumber arguments being advanced, because the ‘best’ ones turn the USA into a theocracy.