Not Exactly a Legal Argument

This is something really quite genuinely incredible. The “Brief of Amici Curiae Same-Sex Attracted Men and Their Wives in Support of Respondents & Affirmance”, authored by one Darrin K. Johns, a Utah Attorney, defies general description. For those given to such myths as the seriousness and gravity of jurisprudence, the proposition that any court, much less the Supreme Court of the United States, ought be expected to endure such frivolity and, ultimately, self-harm as this brief constitutes might bring something of a shock. And no, it is not supposed to be this way.

It is also worth noting that the brief opens with quotes from three of the amici couples. The seven paragraphs that follow establish the interest of the amici; keep that in mind.

Amici are same-sex attracted men and their wives. Like petitioners, amici same-sex attracted men have a sexual orientation that attracts them to members of the same sex. Most identified their feelings at a young age. Some grew up during an era when gays and lesbians were unwelcome and treated with hostility. Others were raised in more accepting environments, but nevertheless experienced the isolation and confusion of feeling different. All recognize that they can be open and public about their sexual orientation now only because of the profound and dramatic changes in American society, politics, and culture arising from “a new perspective, a new insight,” United States v. Windsor, 133 S. Ct. 2675, 2689 (2013) that has brought much needed tolerance and understanding to the deeply misunderstood and complex reality of same-sex attraction.

Unlike petitioners, however, amici choose to build their families on the foundation of a marriage between a man and a woman. Most questioned, at some point, whether it was possible for them to have a successful marriage with a woman in light of their physical and emotional attractions to men. Some married decades ago when the pursuit of legal same-sex relationshps was never an option. Others married more recently, when they could have chosen same-sex relationships with significant social and cultural support. All agree that marriage between a man and a woman is inherently unique, and all have chosen to marry and remain married to their wives―notwithstanding their attractions to men―because of their realization that such marriages bring joy and happiness to htemselves and to their spuses, children, grand-children, and communities.

Their stories are not based on “reparative therapy,” so-called attempts to “pray away the gay,” or other efforts to change sexual orientation. Rather, amici fully accept the reality of their same-sex attractions and fully affirm their individual self-worth, just as they are. But they also do not have a choice about their attractions, they do have a choice about their relationships. And rather than cchoose the culturally acceptable and popularly celebrated “traditional” same-sex relationship, these same-sex attracted men instead have chosen marriage to a woman. They are not alone. Analysis of the 2013 National Health Interview Survey reveals that 51% of bisexual adults with children and 18% of self-identified gay men and lesbians with children were living in such marriages.

Amici support the rights of democratic bodies to extend marial privileges, rights, and responsiblities to same-sex couples. Thorugh the deliberative and experimental process of representative democracies, truly diverse solutions can emerge. But if this Court were to prematurely terminate the democratic debate over how best to recognize and respond to the complex reality of same-sex relationships by constitutionalizing a right to same-sex marriage, it would finalize and federalize this mesage―for the same-sex attactive, marriage to a member of the opposite sex is an impossibilty, even meaningless, and 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 one-size-fits-all message is false, and the Court ought not send it.

Worse still, a Constitutional right to same-sex marriage can only come a the cost fo marginalizing and demaning the marriages and families of amici and many others like them. Petitioners premise their equal-protection and due-process arguments on the assumption that man-woman marriage laws prohibit, foreclose, disqualify, and exclude gay men and lesbians from marriage and disfavor and demean their very identities and existence. But that could only be true if the marriages of amici and others like them are fakes and shams, so contrary to nature as to be entirely undesirable. Petitioners argue, in essence, that the pursuit of a same-sex marriage is the only way for the same-sex attracted “to be true” to themselves; by insisting so, they demean and disparage amici and their families.

Whereas a democratic right to same-sex marriage is familiarly premised on the proposition that marriages 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 fo rsame-sex attracted men and women. Legalizing same-sex marriage via the Fourteenth Amendment, rather than the ballot box, entitles same-sex couples to marriage only by erasing, marginalizing, and demeaning the same-sex attracted who live in man-woman marriages. Such an erasure of another group’s identity and existence is not a “liberty protected by the Constitution.” Lawrence v. Texas, 539 U.S. 558, 568 (2003).

Rather than expand liberty, such a judgment would not only ignore the deeply fulfilling marriages between same-sex attracted men and women and their spouses, but would also constitutionally demean such marriages and families. Inescapably, striking down man-woman marriage laws on the basis of a consitutional deprivation would send a message to the same-sex attracted that there is only one choice for them, that man-woman marriage is unattainable, that they are acting against their nature for desiring it, and that pursuing it will be dangerous for them, their spouses, and their children. But, in reality, the opposite is true. The institution of man-woman marriage is not an insult; it is an ensign, beckoning to anyone―regardless fo sexual orientation―that the union of a man and a woman is uniquely significant because it is endowed with procreative power and complimentary capacity.​

Mr. Johns then proceeds to the “Summary of the Argument”.

There is a weird coincidence here by which the superficial political response coincides with an appropriate consideration. If, for instance, I am allowed to marry a same-sex partner, their heterosexual marriages are inherently denounced as illegitimate?

How else does this work? Whence comes this indictment of these same-sex attracted men married to female spouses, but from their own argument? But from their own consciences?

And, look, one of the things nobody else can help these men with is self-indictment. That is to say, we can give them all the advice and encouragement against self-indictment we might know, discover, or invent, and in the end it is up to them.

The argument Mr. Johns puts forth on behalf of amici is composed of four essential parts. First up is the bizarre “Kentucky argument” about how gay people can get married to opposite-sex spouses, and heterosexuals can’t get married to same-sex spouses, so everything is good. Yes, really. Their complaint is that allowing gay marriage denigrates their heterosexual marriages. Their leading support argument denigrates gay marriage. It is exactly the device they complain about allowing gay marriage. This is not an uncommon political behavior, but in the context of assigning one’s own weakness to an opponent, the maneuver is so transparent that it does not look so much like ego defense as ego flight.

Mr. Johns also points out that “Significant numbers of same-sex attracted men and women choose the unique institution of man-woman marriage”, and potential retorts are myriad. Many have tried to fit in according to the only available route; many will continue to fit in according to community standards hostile to another available route. By one argument―marriage equality―this is their right. By their argument, though, others must give up that right. Their whole argument seems to be fuzzy about the idea of compromise, insofar as perhaps one not among these particular amici might be able to go through the motions of being married to an opposite-sex spouse, but, you know, if he or she might be able to marry a more suitable same-sex partner? Perhaps to these particular men there is no question of compromise in their marriages; this is not so for others, however, and only a straw man seems to begrudge those who have followed more traditional paths.

We are also treated to the argument about procreation, and at some point adopted children really do get to to throw down and tell these people to knock it the fuck off. Furthermore, Johns spends most of that section arguing about traditional sex-based divisions of labor, so eventually the question arises: “And?”

The fourth point of argument is a rehash of the interest of the amici, that “A constitutional mandate requiring same-sex marriage sends a harmful message that it is impossible, unnatural, and dangerous for the same-sex attracted to marry members of the opposite sex”.

And at some point we need to stop laughing long enough to actually try to figure out what Mr. Johns is trying to argue.

Because look at the way it’s worded, and then try to follow the bouncing ball:

Petitioners’ faulty premise that same-sex attracted men and women cannot, or should not, marry members of the opposite sex leads inescapably to this equally false conclusion―it is unnatural and dangerous for same-sex attracted men and women to choose man-woman marriages. Constitutionally mandating same-sex marriage would reinforce this popular sentiment, injuring amici their families,and many others like them.

It is very tempting to focus on the idea of a constitutional mandate

• “constitutional mandate requiring same-sex marriage”

• “Constitutionally mandating same-sex marriage”

―and wonder why the brief sounds so confused on these points.

Think of it this way: They’re doing it to themselves.


While same-sex attracted men and women do not choose to have their same-sex attractions, they do choose whether to pursue same-sex or man-woman relationships. Unfortunately, cultural messages present the Hobson’s choice of either denying the reality of those attractions or foregoing any possibility of a man-woman marriage

Yes. Really.

And then follow two quotes that make the point: They’re doing it to themselves.

I feel like that there are two choices that are pushed out there. One is to deny, suppress, and keep everything inside and pretend that you don’t experience same-sex attraction. That’s one option. The second option is to be open and [have a same-sex relationship]. Essentially those are your two choices. Anything in between is fake, it’s not real. –Brent Olsen

What I really wanted was a wife and kids, but what I kept hearing was, “Nope, that is not an option for you.” –Danny Caldwell

Can we get this part out in the open, please? Nobody is saying a homosexual must, under law, marry a same-sex partner.

I apologize; the compulsion to say that so directly is dizzying. There is a persistent “This isn’t happening .. this isn’t happening!” sensation.

It really is the strangest thing.

This brief ....

This is … insane.

No, really. This is a neurotic mess of self-loathing. This isn’t a legal argument. The picture Mr. John paints is a genuine human tragedy.


Image note: Memories of another life―Pictures of Lebanon’s family, somewhere along a more traditional path. (Detail of frame from Darker Than Black: Gemini of the Meteor, episode 5, “Gunsmoke Blows, Life Flows…”)

Johns, Darrin K. “Brief of Amici Curiae Same-Sex Attracted Men and Their Wives in Support of Respondents & Affirmance”. Obergefell, et al. v. Hodges, et al.. Supreme Court of the United States. April, 2015.

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