Prop 8 Brief and its Natural Law Argument (with a Cameo from the President)

A brief has been filed with the Supreme Court urging the Court to rule that Proposition 8 is constitutional. This first section helpfully lays out some clarification of basic motive:

no%20yes%20on%20prop%208the Ninth Circuit correctly disclaimed any “suggest[ion] that Proposition 8 is the result of ill will on the part of the voters of California, Pet.App.87a. As discussed more fully below, the gendered definition of marriage has prevailed in all societies throughout human history not because of anti-gay animus but because marriage is closely connected to society’s vital interests in the uniquely procreative nature of opposite-sex relationships. It has always been, and is now, supported by countless people of good faith who harbor no ill will toward gays and lesbians. See, e.g., Pet.App.17a (recognizing that redefining marriage to include same-sex couples is “an issue over which people of good will may disagree”). As President Obama recognized, even as he announced his support for same-sex marriage, many people who “feel very strongly” about preserving the traditional definition of marriage do so not “from a mean-spirited perspective” but rather because they “care about families.”

The link to the interview with President Obama has him apparently affirming the propriety of letting states – not the SCOTUS – work out the gay marriage issue:

And what you’re seeing is, I think, states working through this issue– in fits and starts, all across the country. Different communities are arriving at different conclusions, at different times. And I think that’s a healthy process and a healthy debate. And I continue to believe that this is an issue that is gonna be worked out at the local level, because historically, this has not been a federal issue, what’s recognized as a marriage.

Getting back to the brief, this next section presents a natural law argument for reserving the name “marriage” to heterosexual couples. Note the breadth of authorities, including Claude Levi-Strauss, William Blackstone, John Locke, David Hume, Montesquieu, Noah Webster and Bertrand Russell.

The definition of marriage as a union “between a man and a woman,” CAL. CONST. art. I, §7.5, has prevailed throughout this Nation since before its founding, including the period when the Fourteenth Amendment was framed and adopted. See, e.g., BISHOP, COMMENTARIES ON THE LAW OF MARRIAGE & DIVORCE §225 (“It has always . . . been deemed requisite to the entire validity of every marriage . . . that the parties should be of different sex. . . .”). Indeed, until very recently “it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex.” Hernandez, 855 N.E.2d at 8. And “the family – based on a union, more or less durable, but socially approved, of two individuals of opposite sexes who establish a household and bear and raise children – appears to be a practically universal phenomenon, present in every type of society.” CLAUDE LEVI-STRAUSS, THE VIEW FROM AFAR 40-41 (1985); see also, e.g., JAMES Q. WILSON, THE MARRIAGE PROBLEM 24 (2002) (noting that “a lasting, socially enforced obligation between man and woman that authorizes sexual congress and the supervision of children” exists and has existed “[i]n every community and for as far back in time as we can probe”).

The record of human history leaves no doubt that the institution of marriage owes its existence to the undeniable biological reality that opposite-sex unions – and only such unions – can produce children. Marriage, thus, is “a social institution with a biological foundation.” Claude Levi-Strauss, Introduction, in 1 A HISTORY OF THE FAMILY: DISTANT WORLDS, ANCIENT WORLDS 5 (Andre Burguiere, et al. eds., 1996). And that biological foundation – the unique procreative potential of sexual relationships between men and women – implicates vital social interests. On the one hand, procreation is necessary to the survival and perpetuation of the human race; accordingly, the responsible creation, nurture, and socialization of the next generation is a vital – indeed existential – social good. On the other hand, irresponsible procreation and childrearing – the all-too-frequent result of casual or transient sexual relationships between men and women – commonly results in hardships, costs, and other ills for children, parents, and society as a whole. As eminent authorities from every discipline and every age have uniformly recognized, an overriding purpose of marriage in virtually every society is, and has always been, to regulate sexual relationships between men and women so that the unique procreative capacity of such relationships benefits rather than harms society. In particular, through the institution of marriage, societies seek to increase the likelihood that children will be born and raised in stable and enduring family units by both the mothers and the fathers who brought them into this world.

This animating purpose of marriage was well explained by Blackstone. Speaking of the “great relations in private life,” he described the relationship of “husband and wife” as “founded in nature, but be confined and regulated.” WILLIAM BLACKSTONE, 1 COMMENTARIES *410. Blackstone then immediately turned to the relationship of “parent and child,” which he described as “consequential to that of marriage, being its principal end and design: and it is by virtue of this relation that infants are protected, maintained, and educated.” Id.; see also id. *435.

Throughout history, other leading thinkers have likewise consistently recognized the essential connection between marriage and responsible procreation and childrearing. See, e.g., JOHN LOCKE, SECOND TREATISE OF CIVIL GOVERNMENT §78 (1690); DAVID HUME, AN ENQUIRY CONCERNING THE PRINCIPLES OF MORALS 66 (1751); MONTESQUIEU, 2 THE SPIRIT OF LAWS 96 (1st American from the 5th London ed., 1802); NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1st ed. 1828); BRONISLAW MALINOWSKI, SEX, CULTURE, AND MYTH 11 (1962); G. ROBINA QUALE, A HISTORY OF MARRIAGE SYSTEMS 2 (1988); ROBERT P. GEORGE, ET AL., WHAT IS MARRIAGE? 38 (2012). In the words of the sociologist Kingsley Davis:

family is the part of the institutional system through which the creation, nurture, and socialization of the next generation is mainly accomplished. . . . The genius of the family system is that, through it, the society normally holds the biological parents responsible for each other and for their offspring.

The Meaning and Significance of Marriage in Contemporary Society, in CONTEMPORARY MARRIAGE: COMPARATIVE PERSPECTIVES ON A CHANGING INSTITUTION 1, 7-8 (Kingsley Davis ed., 1985); see also, e.g., WILSON, THE MARRIAGE PROBLEM 41 (“Marriage is a socially arranged solution for the problem of getting people to stay together and care for children that the mere desire for children, and the sex that makes children possible, does not solve.”). Indeed, prior to the recent movement to redefine marriage to include same-sex relationships, it was commonly understood and accepted, without a hint of controversy,that an overriding purpose of marriage is to further society’s vital interest in responsible procreation and childrearing. That is why this Court has repeatedly recognized marriage as “fundamental to our very existence and survival.” E.g., Loving, 388 U.S. at 12. And certainly no other purpose can plausibly explain why marriage is so universal or even why it exists at all. As Bertrand Russell put it, “[b]ut for children, there would be no need of any institution concerned with sex.” BERTRAND RUSSELL, MARRIAGE & MORALS 77 (Liveright Paperbound Edition, 1970). Indeed, if “human beings reproduced asexually and . . . human offspring were born self-sufficient[,] . . . would any culture have developed an institution anything like what we know as marriage? It is clear that the answer is no.” GEORGE, WHAT IS MARRIAGE?

We don’t know whether this argument will prevail but it’s safe to say it has a better chance of prevailing that a handful of Bible verses would.

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