Required Reading: Equal Protection Edition

This is pretty much required reading. William N. Eskridge Jr., of Yale Law School, offers an opinion in favor of Amendment XIV recognition of same-sex marriage in Ohio. The middle of the article stands out:

Justice Anthony Kennedy said: “This definition has been with us for millennia. It’s very difficult for the court to say, oh well, we know better.” Justice Samuel Alito asked: “How do you account for the fact that, as far as I’m aware, until the end of the 20th century, there never was a nation or a culture that recognized marriage between two people of the same sex?”

All of the justices and counsel addressing this point accepted the premise that no culture had ever recognized same-sex marriage. That premise is incorrect.

First- and second-century historians Suetonius and Tacitus (disapprovingly) documented official same-sex marriages in imperial Rome. Some modern historians have found plausible evidence of such marriages among Egyptians, Canaanites and Hittites and on islands in ancient Greece. So it is not right to say that the Western tradition had never entertained marriages between people of the same sex until the 20th century.

The evidence is overwhelming for non-Western cultures. In their 1951 book “Patterns of Sexual Behavior,” anthropologists Clellan Ford and Frank Beach surveyed 191 world cultures and found many examples of same-sex intimacy occurring “within the framework of courtship and marriage.” They were mainly referring to “berdache” marriages, in which a man would marry another man who performed domestic duties or a woman would marry a woman who worked outside the home. Researchers have demonstrated that a majority of Native American tribes (as well as many tribal people elsewhere in the world) have recognized such marriages at points in their histories.

Anthropologists have also documented the phenomena of “woman marriage” in African societies, in which a wealthy woman marries another woman and then secures her impregnation, thereby generating heirs. Anthropologist Denise O’Brien reports that such marriages have been recognized in more than 30 African cultures.

There are other examples (some more equivocal), but these show that there has been no universal definition of marriage that excludes same-sex couples.

To the one, it should be noted that Prof. Eskridge also authored an amicus brief in support of the Obergefell petitioners on the question of the Fourteenth. And while the interest of amici might be a bit thin, the brief still makes for excellent reading.

To the other, we should remember what is at stake: Ohio is trying to unmarry a dead man.

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Eskridge Jr., William N. “The 14th Amendment should cover same-sex marriage in Ohio”. The Washington Post. 19 June 2015.

Eskridge Jr., William N. and Ilya Shapiro. “Brief of Amici Curiae CATO Institute, William N. Eskridge Jr., and Steven Calabresi in Support of Petitioners”. Supreme Court of the United States. 6 March 2015.

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.

Flabbergasting

“Inevitably, a ruling in favor of same-sex marriage will usher in an unprecedented coarsening of community moral standards, spawning an aggressive impulse to force the American people not just to tolerate all forms of sexual misbehavior, but to embrace and encourage pagan practices that threaten to ‘defile’ the land, and risk God’s judgment.”

―William J. Olson

This is what it comes to.

This is what Christian supremacists are bringing to the fight.

Yes, you’re allowed to have one of those, “Holy shit!” moments.

About On Schedule

The marriage bans challenged in these cases impermissibly exclude lesbian and gay couples from the rights, responsibilities, and status of civil marriage. These facially discriminatory laws impose concrete harms on same-sex couples and send the inescapable message that same-sex couples and their children are second-class families, unworthy of the recognition and benefits that opposite-sex couples take for granted. The bans cannot be reconciled with the fundamental constitutional guarantee of “equal protection of the laws,” U.S. Const. Amend. XIV.

―Donald B. Verrilli, Jr.

Or perhaps simply an overview from Ryan J. Reilly of Huffington Post:

The Obama administration thinks the Supreme Court should rule that state bans on same-sex marriage are unconstitutional, according to a brief filed by Justice Department lawyers on Friday. The administration takes the position that those laws violate the equal protection clause of the Constitution.

The amicus brief urges the Supreme Court to find such bans “incompatible with the Constitution” because they “exclude a long-mistreated class of human beings from a legal and social status of tremendous import.”

The court will hear oral arguments in the case of Obergefell v. Hodges in April.

Honestly, the only surprise here is that now we need to figure out whence came the notion this one was going forward under DeBoer, the case out of Michigan.

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Verrilli Jr., Donald B. “Brief for the United States as Amicus Curiae Supporting Petitioners”. Obergefell v. Hodges. Supreme Court fo the United States. March, 2015.

Reilly, Ryan J. “Gay Marriage Bans Are Unconstitutional, DOJ Tells Supreme Court”. The Huffington Post. 6 March 2015.