Tradition Can’t be a Reason to Discriminate: Our Brief to the Supreme Court on Same-Sex Marriage

March 6, 2015

Yesterday the Center for Inquiry filed a brief with the Supreme Court arguing that the Court should reverse the decision of the Sixth Circuit Court of Appeals which ruled that there was no right under the United States Constitution for gay and lesbian individuals to marry in Michigan, Ohio, Tennessee and Kentucky. In order to prevent the Court being swamped with briefs, lawyers for the couples seeking the right to marry requested that groups file joint briefs. To facilitate this, the Center for Inquiry joined with the American Humanist Association to submit their arguments.

CFI and AHA argue that the Sixth Circuit erred by finding a justification for the state laws excluding same sex couples from marriage. No such legally cognizable justification exists. Marriage is a fundamental right, and therefore, to exclude groups from the right to marry, a state must demonstrate a compelling government interest – the highest level of scrutiny. But the Sixth Circuit even failed to reach the much lower bar it set for itself, finding a rational basis for the states to discriminate based on sexual orientation. Arguments such as the welfare of children were shown to be mere smokescreens, with not an iota of credible evidence existing for the offensive claim that gay and lesbian parents are worse for children. In the final analysis, the appeals court relied on tradition, and, in particular, a moral dislike for homosexuality based on religious morality.

The brief noted that multiple Supreme Court decisions have made clear that tradition does not excuse discrimination. Moreover, the reliance on a particular strain of religious morality is forbidden by the Constitution, which establishes a secular republic that does not favor one religion over another, or religion in general over non-religion. Throughout American history, religious morality has been put forward as the justification for oppression and discrimination. Slavery, segregation, and bans on women owning property or signing contracts within marriage were justified by reference to the Bible. The Supreme Court has found time after time that states may not use religious justifications to discriminate in this way.

Despite Justice Scalia’s dissent in Lawrence v. Texas, claiming that overturning state bans on sodomy would end all legislation that had a moral basis, the brief demonstrates that many laws have a basis in morality, but that they must also address a societal issue. If a state wishes to ban a practice, it must demonstrate that the practice causes harm, rather than simply claiming a religion finds it morally objectionable. Polygamy is not banned because some churches oppose it, it is banned because it harms children and society. Restrictions on gambling are not permissible because gambling is frowned upon by some religious denominations, but instead because it is alleged that legalized gambling causes damage to low-income communities. In order to justify excluding gay and lesbian individuals from the benefits of marriage, states must show that allowing them to marry harms society in a way distinct from offending religious sensibilities. No state has made this showing, and, indeed, no such evidence exists.

Moreover, the Sixth Circuit’s reliance on the ruling in Town of Greece that sectarian prayers could precede meetings of local legislative bodies was misplaced. CFI and AHA argue that Town of Greece is an outlier, restricted to its peculiar and specific factual situation. Courts at all levels have refused to extend its holding beyond that fact pattern, and there is no justification for seeking to extend it to permit discrimination under the law.

CFI believes that the Supreme Court is poised to make a historic decision, and extend the protections and benefits of marriage to all Americans. CFI has always considered the rights of LGBT individuals to equal treatment to be a central part of our mission. We are proud to have submitted our opinions to the Court on this matter, and proud to have worked with our friends at the American Humanist Association in doing so.

The brief can be read here.