As a Texan, I grew up hearing about the legend of a fellow attorney, William Travis, who, when surrounded in the Alamo by Santa Anna’s army, drew his sword, traced a line in the sand, and invited all who were ready to give the ultimate price for their cause to step across the line. Of 183 men with him, all but one crossed the line.
In a vivid illustration of “the pen is mightier than the sword,” a record number of friend-of-the-court briefs (formally known as amicus briefs) were filed with the U.S. Supreme Court in the last two months, penning a line in the sand on the marriage debate that has especially grabbed America’s attention this week as the U.S. Supreme Court finally heard oral arguments.
More than 58 briefs filed in support of California’s Proposition 8 and the Federal Defense of Marriage Act persuasively affirm three core truths: 1) marriage between a man and woman offers society unique benefits conferred by no other relationship; 2) every child deserves to have the chance to be raised by their biological mother and father, and 3) because men and women are biologically, socially, and functionally unique, the current marriage dispute is a policy issue, not a constitutional question, and the Supreme Court should resist demands to prematurely end the democratic debate by declaring a political winner and unilaterally redefining marriage for everyone.
Opposing briefs were also filed, arguing that children do not need a mother and father, that society has no rational basis for supporting the only marital relationship that provides children a mother and a father, and that the high court should redefine the marriage laws of all 41 states that currently affirm marriage as the union between a man and a woman.
Indeed, the line has been drawn: in essence, marriage supporters argue that society has the strongest interest in promoting the only relationship that creates life and the optimum opportunity to raise children in a stable home. Those who want the Supreme Court to redefine marriage strain the meaning of a constitutional amendment enacted in 1868 to argue that it compels society to affirm any two adults’ love for each other so that they can obtain social approval of their sexual relationship; the welfare of children is a subordinate concern.
Marriage supporters argue that marriage is not only a personal promise, it has a public purpose far beyond the promise of two individuals. The diversity of those who support that position enhances its persuasiveness. In addition to the more than 20 state attorneys general who stepped across the line in support of marriage, briefs were also filed by self-identified “LGBT” authors explaining the importance of protecting marriage as the union of one man and one woman, by African American groups demonstrating that preserving marriage’s time-honored understanding as a man-woman union is nothing like laws banning interracial marriage, by scholars of federalism and judicial restraint contending that the states should remain free to preserve the natural definition of marriage, by international judges and scholars from all over the world demonstrating that international law does not support the redefinition of marriage, and by others highlighting the threats to religious liberty that accompany a redefinition of marriage.
This overwhelming amicus response dwarfs the number of filings in cases such as Roe v. Wade, Lawrence v. Texas, or Romer v. Evans. In fact, the total number of amicus briefs filed on both sides in the
Proposition 8 case exceeds the total number of briefs filed in all three of the above cases combined.
This amicus response from both sides demonstrates an ongoing democratic debate. While the Supreme Court should heed the line articulated by those groups and scholars supporting marriage as a man and a woman, it should at the very least affirm that society’s best interest is served by 1) allowing the national debate to continue and 2) resisting demands to hijack the democratic process by imposing a 50 state mandate.
Legend has it that as Colonel Travis issued the call for those who were willing to stand for what they believed in, a wounded and bedridden Jim Bowie inspired the men by asking Davy Crocket and a few others to carry him across the line because he could not walk himself. He demonstrated unflinching commitment to a cause that would serve generations to come. As a part of the legal team defending the California marriage amendment before the Supreme Court, Alliance Defending Freedom is thankful for, and inspired by, the more than 7 million Californians that demonstrated their commitment to future generations by stepping across the line in support of Proposition 8 and the bedrock institution of marriage.
California and other states should maintain the right to support marriage: a private promise between a man and a woman with a public purpose—the only relationship that combines love with the procreative possibility of life and the highest probability of stable, nurturing homes for children.
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