There have been at least 64 amicus curiae briefs filed by outside parties in Obergefell v. Hodges, the Supreme Court’s upcoming case that will decide whether there is a federal constitutional right to same-sex marriage. One in particular is drawing attention–the one filed by “same-sex attracted men and their wives,” against federalizing gay marriage. The logic is compelling, the stories riveting–and that is why the left is terrified of it, calling it “the worst” of “terrible” arguments against gay marriage.
At Slate, for example, Mark Joseph Stern trashes the brief. He describes its argument accurately–although he misconstrues one crucial detail: the gay men aren’t saying that “[t]he Supreme Court must not protect gay couples’ marriages.” Rather, they are arguing that states should be able to decide, rather than being forced to accept same-sex marriage by judicial fiat: “Through the deliberative and experimental process of representative democracies, truly diverse solutions can emerge.”
The brief, which can be read here, makes a crucial distinction between being gay and living a gay lifestyle. It points out that many gays, lesbians, and bisexuals enjoy heterosexual marriages and have children the old-fashioned way–not because they are repressed, not because they want to “pray away the gay,” but because they believe traditional marriage is more fulfilling, and offers “the uniquely procreative power and complementary capacity of the union of a man and a woman.”
A “one-size-fits-all” imposition of same-sex marriage, they argue, relies on the argument that “only same-sex marriage can bring gays and lesbians the personal and family fulfillment and happiness that is the universal desire of the human heart.” That, they say, is false–and demeans their traditional marriages as “fakes and shams, so contrary to nature as to be entirely undesirable.” They add:
Whereas a democratic right to same-sex marriage is familiarly premised on the proposition that marriage should be extended to include same-sex couples in order to expand individual liberty, a constitutional right to same-sex marriage—based on an alleged impermissible discrimination or denial of right—is necessarily premised on the falsehood that man-woman marriage is impossible, unnatural, and dangerous for same-sex attracted men and women. [Original emphasis.]
The brief also offers several moving personal testimonies of men who are attracted to men but happily married to women.
In a sense, the amicus brief demands an equal standard for all. If the Court can accept, as Justice Anthony Kennedy did when striking down the Defense of Marriage Act in U.S. v. Windsor (2013), that a ban on same-sex marriage “demeans the couple, whose moral and sexual choices the Constitution protects,” then the Court should acknowledge that imposing same-sex marriage demeans those who make traditional choices, which the Constitution theoretically protects as well.
Stern says that the idea “that a marriage between a gay man and a straight woman can be ‘deeply fulfilling,'” is just a “depressing delusion.” He does not elaborate–he merely presumes to know better than the men and women themselves.
He is compelled to admit, however, the logical force of this particular brief. It is “internally consistent,” he says, because it argues openly and passionately that traditional marriage is a preferable institution. (He disagrees vehemently, of course.)
What the left resists in this argument is the notion that there might be diverse institutional expressions of gay sexuality. Even more than that, the left resists the notion of individual autonomy, the idea that each of us is more than the sum of our appetites or identities.
In that sense, the amicus brief–“wacky” though it might seem to some–upholds a humanistic idea of individual liberty, as opposed to the left’s crude egalitarianism and bland materialism. Win or lose, it is an argument worth making.