Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Saturday, March 2, 2013

An Amicus Brief in the "Gay Marriage" Cases

MOJ's own Tom Berg, along with Douglas Laycock (University of Virginia School of Law) and Marc Stern (American Jewish Committee), on behalf of the American Jewish Committee, have submitted an amicus brief to SCOTUS in Hollingsworth v. Perry (the Prop 9 case) and USA v. Windsor (the DOMA case).  The brief makes a strong plea for protecting religious liberty in the context of the legalization of same-sex marriage.  The brief also argues:

"In Perry, wholly excluding same-sex couples from civil marriage deprives them of a fundamental right.  And as implausible as it is to explain civil marriage in terms of protecting children, it is even more implausible to use children to explain the difference between civil marriage and a civil union that would — if it were sufficiently well understood to be enforceable as a practical matter — confer all the same rights as civil marriage.  If the Court prefers to proceed cautiously, deciding one case at a time, it should affirm the judgment in Perry on the narrow ground stated by the Court of Appeals.  The Court should not reverse on the merits.  To do so would be wrong, for the reasons we have stated; it would also be unstable.  In the area of same-sex relationships, where public understanding of the underlying facts is rapidly changing, the Court cannot reach a stable constitutional resolution by broadly rejecting constitutional claims.  The last time it attempted to do so, in Bowers v. Hardwick, 478 U.S. 186 (1986), it overruled the decision just seventeen years later, and parts of the Bowers opinions are now a permanent embarrassment in the United States Reports.  The Court should not repeat its Bowers mistake in these cases."

The brief is available here:  Download Marriage Cases AJC Brief Final.


Perry, Michael | Permalink


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The AJC states at the outset of its brief that its position on marriage "has evolved" -- in 2004 opposed to the redefinition of marriage, the AJC now supports it. What, other than public opinion, has changed since 2004 (or for that matter since the time of Moses)? Public opinion is a notoriously lousy arbiter of truth and justice. The (quite prevalent) notion that the constitution should rubber stamp public opinion also makes for a worthless constitution. What good is a constitution if it does not resist public opinion based on principle? But don't call me surprised. The Supreme Court has a really, really lousy record when called upon to employ principle to resist popularly supported bad laws: Dred Scott, Plessy v. Ferguson, Lochner, Buck v. Bell, Korematsu, Roe, and, now maybe, Perry. Catholic legal scholars should address why this is, to the extent that they have not already. I suspect that the reason the Church's Magisterium succeeds where secular constitutions fail has to do with the inherently relativistic nature of the latter.

Posted by: Dan | Mar 2, 2013 6:50:28 PM


It seems to me what you are unhappy about is American democracy. Public opinion is *supposed* to matter in this country. The Founding Fathers did not create a country to be ruled by a Magisterium. They created a government of the people, by the people, and for the people.

By the way, a *lot* has changed since the time of Moses. You remember Jesus, don't you?

The understanding of marriage in ancient Israel was all about the rights of men. Sex between a married woman and an unmarried man was adultery, but sex between a married man and an unmarried woman was not. When an unmarried man had sex with a married woman, he violated the rights of the woman's husband. When an unmarried woman had sex with a married man, she did not violate any rights of the wife, since the wife had no rights. A man was permitted to divorce his wife, but a wife was not permitted to divorce her husband.

Posted by: David Nickol | Mar 3, 2013 5:24:44 PM

David, Jesus often referred to those who did not follow The Spirit of The Law as hypocrites.

Posted by: N.D. | Mar 4, 2013 11:12:55 AM

N.D, The Spirit of the Law can be summarized in the Two Great Commandments: (Mark 12:30-31). These are compatible with marriage equality (love thy neighbors as yourself). Indeed, those who ignore these commands are likely hypocrites.

Posted by: sean samis | Mar 4, 2013 12:18:39 PM

The hypocrites would be those persons who believe they do not need a Savior because they can declare what is Good, and thus define the meaning of Love.

"I give you a New Commandment, Love one another as I Have Loved you." - The Word Of Love, Jesus The Christ

According to The Word Of Love, Marriage is restricted to those who can exist in relationship as husband and wife.

Posted by: N.D. | Mar 5, 2013 12:21:37 PM