Liberty Counsel’s Bad Arguments in Michigan Marriage Case

Liberty Counsel has filed a brief in the 6th Circuit Court of Appeals in the case that overturned Michigan’s ban on same-sex marriage on behalf of the American Family Association of Michigan and its president, virulent bigot Gary Glenn. I’m sure it will come as a huge surprise to hear that the arguments it contains are absolutely terrible. For instance:

In other words, marriage, i.e., the union of one man and one woman, is the institution upon which society is built. As a foundational social institution, marriage fosters stability, permanency, fidelity, and the continuation of society itself.

These myriad societal goods provide a multitude of rational bases on which the people of Michigan could have and many in fact did rely on in overwhelmingly passing the MMPA…

Marriage is, has always been, and forever will be a comprehensive union of one man and one woman that fosters responsible procreation and child-rearing, and therefore is “fundamental to the very existence and survival of the race.” Marriage “is an institution in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress.”

Wait, is someone proposing to eliminate marriage? Of course not. Which makes this argument absolutely irrelevant. Allowing gay people to get married does precisely nothing to harm the institution of marriage. And if marriage is so wonderful because it fosters stability, permanency and fidelity, isn’t that an argument in favor of allowing gay people to get married? It’s the same old absurd argument: marriage is good, therefore gay marriage is bad. Still being repeated, still a non sequitur.

Then they make the truly bizarre argument that because the Supreme Court upheld an entirely different and completely unrelated referendum in a recent case, they must do so here as well:

THE SUPREME COURT’S VALIDATION OF MICHIGAN VOTERS’ ENACTMENT OF A CONSTITUTIONAL AMENDMENT PROHIBITING RACE-BASED PREFERENCES REQUIRES REVERSAL OF THE DISTRICT COURT’S DECISION.

As recently as last month, the Supreme Court confirmed that Michigan voters’ rights to amend their Constitution must be respected and protected against attempts to judicially repeal enactments that some find politically unpopular. In Schuette as in this case, Michigan voters amended their Constitution in response to governmental actions that were contrary to the citizens’ public policy determinations. Schuette involved an issue as socially and politically controversial, or perhaps more controversial, than the issue of memorializing the definition of marriage, i.e., affirmative action in governmental programs. The Supreme Court upheld the citizen-enacted constitutional amendment that prohibited racial preferences in public education, hiring and contracting. As Plaintiffs do in this case, in Schuette the plaintiffs sought invalidation of the amendment on the grounds that it violated Equal Protection.

Okay, seriously, that’s just a ridiculous argument. Sometimes the Supreme Court upholds laws and sometimes it strikes laws down. But the fact that it upheld a completely unrelated law in a completely different case does not mean they should or will uphold this one too. This is what happens when you learn your law from a place like Liberty University, you make staggeringly stupid arguments like this.

And then they offer what we might call the argument from STDs.

Not only is there no bodily good or function toward which two same-sex bodies can coordinate, but there are in fact inherent harms associated with same-sex unions.35 For example, homosexual males are at exponentially higher risk of developing a variety of sexually transmitted diseases, and have increased risks of developing various cancers and medical conditions because of the nature of same-sex sex. On May 9, 2014, the Centers for Disease Control and Prevention published a report documenting significant increases in sexually transmitted diseases in homosexual men for the period 2005-2013, calling the trend a “major public health concern.”

Even advocates for same-sex “marriage” acknowledge that the nature of the sexual acts in which same-sex couples engage carry health risks that are not as prevalent, or in some cases, not present at all, in heterosexual individuals.

Oi vey. Have you noticed that when the bigots make this argument, they only ever mention gay men? They never mention gay women. You know why? Because gay women have significantly lower rates of STDs than even straight people do. So if this argument is to be taken seriously and applied consistently, they should be advocating for lesbians to be allowed to get married. But they don’t. Why? Because this is a pretext, not a serious position. Their real position is that gay is bad and immoral, period, but they know that doesn’t provide a rational basis for public policy. So they’re forced to come up with arguments like this that are really just special pleading.

And if this argument is to be taken seriously, isn’t it an argument in favor of same-sex marriage anyway? Shouldn’t we be encouraging gay men to form monogamous relationships if this is true? They make the argument that marriage, by encouraging monogamy, reduces these health risks. Why does that reasoning magically not apply to gay people? Oh yeah, because it’s a pretext and not a coherent argument.

And lastly, do they think that gay people are going to stop being gay or stop having sex if they aren’t allowed to get married? Do they think gay people are going to think “Well, they’re not gonna let us get married, so I guess I’ll just click my heels together and become straight” and The Gay will magically disappear?

There’s just so much that is illogical about these arguments, which is exactly why the district court found the purported rational basis for this ban on same-sex marriage to be nonsense. The very fact that their arguments for the ban are irrational proves that there is no rational basis for it.

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  • StevoR : Free West Papua, free Tibet, let the Chagossians return!

    So .. they got any *good* arguments to offer?

    *

    *

    *

    *

    *

    (Crickets)

    *

    *

    *

    Nah, I didn’t think so.

  • Mr.Diby StillCertainlyObjects

    It’s unnatural.

  • StevoR : Free West Papua, free Tibet, let the Chagossians return!

    @ ^ Mr.Diby StillCertainlyObjects :

    What’s unnatural?

    http://en.wikipedia.org/wiki/Homosexuality_in_animals

  • RickR

    As a foundational social institution, marriage fosters stability, permanency, fidelity, and the continuation of society itself.

    And therefore we must do everything in our power to deny it to gay people.

  • D. C. Sessions

    This is what happens when you learn your law from a place like Liberty University, you make staggeringly stupid arguments like this.

    Careful, Ed. The graduating classes of Liberty University Law are going to be providing us with the next several Republican Supreme Court Justices (get them young: no paper trail, lots and lots of time on the Bench.)

  • colnago80

    Is Mr. Brayton going to discuss the Pennsylvania decision of yesterday where the judge applied the heightened scrutiny test?

  • Chiroptera

    In other words, marriage, i.e., the union of one man and one woman, is the institution upon which society is built.

    That’s interesting. The foundation upon which the society I live in is constitutional law.

    Is the society in which Liberty Counsel based an advanced one?

  • colnago80

    Procreation arguments is negated by the fact that these clowns never demand that infertile men or women past menopause be prohibited from getting married.

  • Blattafrax

    #2 “It’s unnatural” says Mr. Diby using his computer. Presumably an organically and locally grown PC then?

    I particularly like:

    homosexual males are at exponentially higher risk of developing a variety of sexually transmitted diseases

    Exponentially? What does that even mean? (Well, I know what it means, but what does it mean applied to disease in gay men. The mind boggles.)

  • http://www.facebook.com/profile.php?id=611455454 David Hart

    What exactly do you mean by ‘unnatural’, Diby? You’ll need to spell it out clearly, because there are some senses in which homosexuality can’t be called unnatural, and there are lots of things that we do often call unnatural that are still routinely accepted and not used as a basis for discrimination.

  • http://www.facebook.com/profile.php?id=611455454 David Hart

    And by ‘some senses’, I should clarify, ‘pretty much all senses that don’t involve looking for an arbitrary excuse to beat up on people you’ve already decided you don’t like’. But I see others are in before me anyway.

  • cptdoom

    To paraphrase Heathers, I’m just impressed to see that they made proper use of the word ‘myriad.’

    For example, homosexual males are at exponentially higher risk of developing a variety of sexually transmitted diseases, and have increased risks of developing various cancers and medical conditions because of the nature of same-sex sex. On May 9, 2014, the Centers for Disease Control and Prevention published a report documenting significant increases in sexually transmitted diseases in homosexual men for the period 2005-2013, calling the trend a “major public health concern.”

    And some public health group just came out this morning saying that handshaking is unsafe, especially in a medical setting, because of the risk of germ transfer. Would that make an amendment stopping people from shaking hands Constitutional?

    And if we want to talk about major public health concerns, can we talk about men and violence, particularly firearms violence? ‘Cause the statistics show that men have this tendency to harm themselves and/or others when they have firearms available. Should we use those data to stop men from possessing firearms?

  • http://www.facebook.com/den.wilson d.c.wilson

    I don’t get the STD argument at all. Do they really think that gay men won’t have sex if they aren’t allowed to get married? If they’re really concerned about STD transmission, wouldn’t they want to encourage gays to encounter into an institution that promotes monogamy?

  • dingojack

    “For example, [women] are at …increased risk of developing various cancers and medical conditions because of the nature of [their] sex. [ie they have breasts and uteri and men don’t].

    OMG!!! Wimmenz should be banned!!!

    (Or, alternately, we could recognise and mitigate the risks, like responsible adults).

    Dingo

    ——–

    How old were these ‘lawyers’, six?

  • John Pieret

    Allowing gay people to get married does precisely nothing to harm the institution of marriage.

    It harms their idea of what the institution of marriage should be, just as interracial marriage harmed the idea of what the institution of marriage should be of earlier generations of bigots. And, of course, those earlier bigots also claimed that interracial marriage was “unnatural” as well.

  • Chiroptera

    d.c.wilson, #13:

    The purpose of marriage is to control women’s sexuality. It doesn’t really apply to gay men.

  • Kevin Kehres

    Back in the bad old days, I remember the number one complaint about the newly out gay community was that they only wanted to have bath-house sex with multiple partners. Why can’t they just settle down?

    And then, of course, HIV came along. I think the whole “irrational exuberance” associated with the bath-house era was bound to come to an end, anyway. But the gay people I know who lived through that era wanted nothing more than to just settle down in peace with a partner.

    That the right wing is complaining about the normalization of homosexual mores towards serial monogamy just shows how deeply they’re offended by the mere idea of homosexuality.

    Part of it is fear. Conflating being gay with being a pedophile. Part of it is just good old-fashioned outgroup bigotry. Like Diby @2 above. Troll.

  • eric

    Marriage is, has always been, and forever will be a comprehensive union of one man and one woman that fosters responsible procreation and child-rearing

    Help! Help! The counter-examples are crushing my brain!

    And wtf is a comprehensive union?

  • Scientismist

    Mr.Diby (who ‘StillCertainlyObjects’) is being given a hard time for saying “It’s unnatural.” I just thought he was trying to be funny, but I suppose there are still some people who might take that as a serious statement. In any real-world context, it’s utterly ridiculous, but for me, it became a joke sometime in the late 1970’s, when I saw Anita Bryant use it on a TV talk show. I taped it, and kept it until the VHS tape died. It was a hoot. You have to imagine just the three words “But it’s unnatural!” being voiced in a sort of musical strangled screech.

  • RickR

    I don’t get the STD argument at all. Do they really think that gay men won’t have sex if they aren’t allowed to get married? If they’re really concerned about STD transmission, wouldn’t they want to encourage gays to encounter into an institution that promotes monogamy?

    The entire purpose of the STD argument is to shore up their opinion that “we think gay people are ICKY and YOU should too!!!11”

    Really, they don’t bother obscuring their bigotry with even a veneer of rational argument. It’s baked into their premises in such a way that they don’t even see it. But unfortunately for them, others (like federal judges) can spot it easily.

    A) “Marriage is this thing that is good.”

    B) “We wouldn’t want to damage this thing that is good”

    C) [unstated bigoted opinion about black gay people]

    D) “Allowing Group C legal access to marriage will damage it”

  • Scientismist

    “And wtf is a comprehensive union?” — Perhaps one that a bigot can comprehend?

  • D. C. Sessions

    The purpose of marriage is to control women’s sexuality. It doesn’t really apply to gay men.

    It also doesn’t apply to lesbian women.

    Interestingly, it’s the only logical argument I’ve run across. Morally repugnant, of course, but logical. Still, I don’t really see it showing up in any of the submitted briefs despite the fact that by now it’s probably the best one they’ve got.

  • RickR

    Should’ve used “interracial couples” rather than “black” in my above post for accuracy, but it really comes down to “black people shouldn’t be allowed to marry white people”, which is just a slightly different shade of the same thing.

  • Nentuaby

    Scientismist: Relevant here is that Diby’s screen name is so unwieldy because he’s been banned *repeatedly* on other FTBlogs and keeps mutating it to try and evade the block. (Itself a bannable offense, of course.) He’s either dead serious or a really awful troll who wants to be taken that way.

  • gshelley

    Marriage is, has always been, and forever will be a comprehensive union of one man and one woman that fosters responsible procreation and child-rearing, and therefore is “fundamental to the very existence and survival of the race.”

    The second part of this seems to have been totally demolished by the trial judge, as far as I can see, they don’t even try to argue that he was wrong and that Michigan does link marriage and children in some way. The first part seems to boil down to “It just is”

  • Taz

    there no bodily good or function toward which two same-sex bodies can coordinate

    I don’t even know what this means, but I’m pretty sure it just rejected the legitimacy of most sports.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    cptdoom “And some public health group just came out this morning saying that handshaking is unsafe, especially in a medical setting, because of the risk of germ transfer. Would that make an amendment stopping people from shaking hands Constitutional?”

    At least try to be logical. Heterohandshakes are fine. Even homohands shaking heterohands is okay. But when homogays try to ruin the Sanctity of Handshakes by insisting that homohands shaking homohands is somehow not redefining the Unchanging and Natural State of Handshakes, well, that’s a step too far.

  • http://timgueguen.blogspot.com timgueguen

    Speaking of “natural” computers maybe Diby uses one of these: http://questionablecontent.net/view.php?comic=2587

  • http://www.facebook.com/den.wilson d.c.wilson

    Chiroptera @16:

    The purpose of marriage is to control women’s sexuality. It doesn’t really apply to gay men.

    I’m sure that’s what they believe, but that really doesn’t explain how they seem to think banning gay marriage will stop gay men from having sex. I don’t get it.

  • colnago80

    In other news, Governor Corbett of Pennsylvania stated that he will not appeal judge Jones’ decision yesterday throwing out the law barring recognition of same sex marriages.

    http://goo.gl/P4PhLj

  • http://www.facebook.com/chris.rhetts Chris Rhetts

    Ever since Judge Vaughn Walker’s decision in Perry vs Schwarzenegger (Prop 8), I’ve been reading through the decisions of other judges who have ruled against bans on same sex marriage in state after state. Every opinion by every judge has dismissed whatever “evidence” plaintiffs have offered as so weak that it isn’t worth considering.

    Encouragingly though, it looks like the Pennsylvania case was different. In this case, plaintiffs seem to have realized that basing their defense on phony evidence, which immediately falls apart, is a non-starter. And for the first time no such evidence was offered. Instead, the state went straight to an equally phony “state’s rights” argument.

    Reading judges eviscerate the testimony of the so called “experts” which plaintiffs have drug into court has been fun. But it looks like word is beginning to get around that it just makes you look all the more idiotic.

  • felidae

    “They never mention gay women”

    Gay male sex is bad because it is icky–female gay sex is OK and fun to watch

  • Michael Heath

    Chris Retts writes:

    Ever since Judge Vaughn Walker’s decision in Perry vs Schwarzenegger (Prop 8), I’ve been reading through the decisions of other judges who have ruled against bans on same sex marriage in state after state. Every opinion by every judge has dismissed whatever “evidence” plaintiffs have offered as so weak that it isn’t worth considering.

    I’ve noticed this as well. I’ve longer wondered what arguments conservative Christians would use in court given how horrible their arguments were in the public square. Well now we know; they’re of the same quality as those that:

    1) claim the Bible is the inerrant word of God,

    2)) the earth is 6000 years old,

    3) that climate change isn’t a threat and,

    4) that government sponsored [Christian] prayer isn’t an infringement on other people’s rights.

  • D. C. Sessions

    Mr. Heath, I agree that your list is pretty much what they’re selling.

    How do you feel about the fact that that #4 is the supreme law of the land (implicit in the United States Constitution) and what that implies about the other three?

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    Look, it’s not “government sponsored prayer”, it’s just meaningless, simple ceremonial deism. No. Wait. It’s “tradition” now. Just as it’s always been tradition.

    Why must you people be so Militant, Uncivil and Divisive by insisting that your so-called “rights” somehow override the Constitutional rights of the Popular Majority? It’s fair. You, too, can pray before meetings. Just do it silently all on your own outside the room and don’t bother the rest of us about it, and make sure to rise and sit and say the right words at the right times for our prayer and you’ll fit right in. Amen.

    That’s right. “Our prayer”. “From many, one”. Mine, but that’s just a coincidence. It could be yours, but it’s not. So suck it up and be a player for our team. Again, mine.

    The sooner you people stop arguing for Special Rights the sooner we can go back to ignoring you and pretending you don’t exist.

  • John Pieret

    Modus @ 35:

    I wish that was parody!

  • eric

    @31 – I liked Jones’ arguments but I didn’t like his style (in this ruling). He is obviously so pro-SSM in style that his ruling is basically begging a higher conservative judge to find it biased. I think the cause of gay rights would have been better served if he had written his ruling in a more distanced, academic style, similar to what he used in the Dover case. THAT ruling was so good because (IMO) even a conservative, pro-Christian judge could read it and think “this guy’s on the level; he did his job, and even though I empathize with the school board, I am convinced they did wrong here.” I fear that with THIS ruling, in contrast, a conservative judge is far more likely to not even read past the first paragraph, or they’ll read it but see it as some liberal judge’s attempt to justify their ideology, rather than some even-handed and sober, neutral decision.

  • Kermit Sansoo

    Gay sex is unnatural!

    Umm. Just about every species of mammal and bird we’ve studied show some gay sex.

    […]

    Stop behaving like animals!