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.
