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Defending Marriage in the Supreme Court

The United States Supreme Court recently heard oral arguments in Obergefell v. Hodges regarding whether or not state restrictions limiting marriage to one man and one woman are constitutional. The petitioners in that case were same sex-couples who wanted the Court to change the definition marriage. The respondents were the four states that defined marriage as between one man and one woman.

More than 100 outside parties on both sides of the issue submitted briefs as “friends of the court.” I decided to submit such a brief that makes the case for marriage. Following are excerpts of that brief and the story of how it came in to be written.

What is an amicus curiae?

An amicus curiae is not a party to the case but a “friend” who offers information that the Court may find helpful in coming to a decision. Amici do not appear in court but write up their arguments in the form of legal briefs that are distributed to the judges and to the attorneys for both sides.

I have for some time wished that I could tell a court what I have learned about marriage’s importance to the well being of children, but only attorneys admitted to the Supreme Court bar may file amicus briefs. In January 2015, an attorney friend of mine, Sharee Langenstein, was sworn into the Supreme Court bar. Sharee and I met at an Alliance Defending Freedom training session, and she had experience as both an appellate attorney and as an advocate for children.

Sharee also worked as a lobbyist in defense of marriage and had arranged for me to testify against genderless marriage in Illinois. Less than a week after Sharee was sworn in to the Supreme Court bar, the Court announced it would decide the marriage cases. We had fought the good fight together, and I was happy she could help me make my case before the Court.

I wrote what I wanted to say in the brief, explaining the arguments. Sharee researched cases and argued the legal precedents, putting the brief into proper legal form. Technically, there were two friends of the court, or amici curiae—the Ruth Institute and me, personally.

A highlight of the brief was the point that genderless marriage creates less equality, not more. Advocates of genderless marriage rely almost exclusively on notions of fairness and equality, and I wanted to show the Court that this simply wasn’t true. I also wanted to introduce the Court to “Structural Injustices to Children,” a key concept in my research. Finally, in the conclusion, I wanted to allude to prior mistakes the Court has made, with the hope the Court would not repeat its errors.

Below are passages of the brief, omitting the legal citations, paraphrasing at times, and adding explanatory material where necessary. Our hope, of course, was to persuade the justices to do the right thing. However, in the event that does not happen, this brief can give ammunition to the dissenters, and make the case for marriage before the bar of history.

Introduction and summary of argument

Petitioners have come before this Court requesting constitutional affirmation of the feelings adults have for other adults. Amici curiae ask this Court to instead affirm the constitutional rights of children to know who they are and where they came from. The two positions cannot coexist. This Court must choose one or the other: either affirm the long-established law providing constitutional protection for the rights of children and families, or abandon such protections and rule that the desires of adults are more important than the legitimate needs of children.

I. The public purpose of marriage is to attach mothers and fathers to their children and to each other.

The case before you today presents a unique opportunity to this Court, one that it should not lightly circumvent: to define the purpose of marriage in the public square. Why does government recognize marriage, as an institution, at all? Amici Dr. Jennifer Roback Morse, Ph.D., and the Ruth Institute are in a unique position to assist the Court in addressing that question.

What is the public purpose of marriage?

Marriage is society’s primary institutional arrangement that defines parenthood. Marriage attaches mothers and fathers to their children and to one another. A woman’s husband is presumed to be the father of any children she bears during the life of their union. These two people are the legally recognized parents of this child, and no one else is.

Over the past twenty years, courts have attempted to define marriage outside of its historical and generative context. For example, the court in Perry v. Schwarzenegger defined marriage this way:

“Marriage is the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents.”

What courts and others have failed to explain is why a state has any interest at all in the private feelings and commitments of adults without concern for the welfare of the children such relationships sometimes produce. The purposes of marriage proposed by these courts are not really public purposes at all. Any court that endeavors to sever the procreative significance of marriage from its public purpose, is wholly and unequivocally wrong.

Not every marriage has children. But every child has parents. This objection [that not all married couples have children] stands marriage on its head by looking at it purely from the adult’s perspective, instead of the child’s. . . . It is about time we look at it from the child’s point of view, and ask a different kind of question: What is owed to the child?

Children are entitled to a relationship with both of their parents. They are entitled to know who they are and where they came from. Children cannot defend their rights themselves. Marriage is society’s institutional structure for protecting these legitimate rights and interests of children.

Once marriage is stripped from its concern with the welfare of children, nothing remains of a genuinely public purpose. Marriage becomes little more than a government registry of friendships—which is, arguably, none of the public’s business.

Courts confuse the issue by referring to presumptions of “legitimacy” and “parentage,” instead of the presumption of paternity that has existed in common law for centuries. This shift is not merely semantic but is instead a sleight of hand that inevitably results in the disenfranchisement of parental and familial rights. Many state laws now create parenthood within a marriage, where formerly the law merely recognized it.

In opposite-sex relationships, if a woman becomes pregnant, her husband is almost always the natural parent of her child. In same sex relationships, however, the spouse of the pregnant woman never is.

The same-sex partner of a biological parent is the legal equivalent of a stepparent. Like any other stepparent, the same-sex partner of a biological parent has no genetic connection to the child. When a child is born to a parent who is married to someone of the same sex, the partner of the parent is and should remain a legal stranger to the child unless and until an adoption proceeding is brought, a best-interests hearing is held, and an adoption decree is entered. If the second natural parent is fit and has not surrendered parental rights, such a decree is, and should remain, prohibited by law.

The legal presumption of “parentage” rather than “paternity” serves as the vehicle through which the child becomes legally separated from his or her natural parents. Parental rights are vested in unrelated persons, though neither a formal adoption proceeding nor a corresponding “best interests” hearing, (which serves as a constitutional safeguard) has ever been conducted by any court.

II. Removing the gender requirement from marriage creates less equality, not more.

Parents have a constitutional right to bring up their own children. The due process clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. Removing the gender requirement from marriage always comes with a corresponding removal of the gender requirement from parenting. This legal maneuver necessitates more, not less, state intervention. The move toward “marriage equality” has created deep inequalities in the lives of American families.

In Kulstad v. Maniaci, a 2008 case brought in the state of Montana, two women entered into a common-law domestic partnership. One of the women, Barbara Maniaci, legally adopted two children during her time with Kulstad and was the children’s only legal parent for the duration of the relationship. When the couple split, however, the court awarded the civil partner of the children’s legal mother a “parental interest in the minor children.” The Montana Supreme Court upheld the decision.

This case is disturbing for several reasons. First, children are not property in which various adults can claim an “interest.” Secondly, the court’s decision amounts to a de facto adoption, judicially imposed upon Maniaci without her consent. Finally, Maniaci’s parental autonomy was greatly weakened by the court’s decision. Maniaci must share her children with someone who has no biological or adoptive relation to them. Maniaci is forever tied to someone who, solely due to a prior romantic involvement, gained an “interest” in her children’s lives. The same-sex relationship of these two women forced the state into the children’s lives rather than out of it.

Why is this legally relevant? Compare the Montana parental rights case with the Illinois case of In re M.M. In this case, the Cook County public guardian wanted to place conditions within the final adoption decrees of children placed through foster care. The guardian sought a requirement that separated siblings be allowed to maintain contact with one another after the adoption order was entered.

The guardian’s request was well intentioned, but the Illinois Supreme Court found that adoption decrees must be entered unconditionally. Adoptions vest permanent, irrevocable rights in the legal parents, and the Court held that, as such, adoptions cannot be subject to any conditions—not even a requirement of sibling contact.

The respondents in the present case recognize that the public purpose of marriage is inextricably intertwined with parentage. Respondents can and should exercise their authority to encourage natural parental rights and strong familial relationships, and reject the diminished parental rights that come about as a direct result of genderless marriage. “The rights to conceive and to raise one’s children have been deemed ‘essential,’ basic civil rights of man, and rights far more precious than property rights” (Stanley v. Illinois, 1972).

Respondent states do not violate the Fourteenth Amendment due process or equal protection clauses when protecting these important familial rights, because familial rights are themselves afforded Fourteenth Amendment protection. Our society attaches great importance to biological ties in several contexts, including sibling relationships in adoption, the opening up of adoption records, and the Indian Child Welfare Act.

Some have claimed that a marriage should, of necessity, encompass a presumption of “parentage” for a non-biological partner rooted in contract law, similar to that in surrogacy agreements wherein the pregnant woman is also the child’s biological mother. However, states that allow such surrogacy arrangements have expressly prohibited women from signing away their parental rights before the child is born.

Similarly, mothers who make adoption plans for their children are permitted to change their minds once the baby is born. No state honors an adoption contract made before a child is born. A woman who forms a legal union with another woman is the only mother who cannot reconsider after her child is born.

These cases illustrate an important question: if a surrogate can change her mind after the baby is born, and a mother who has made an adoption plan can change her mind after the baby is born, then why can’t a mother in a same-sex relationship change her mind after the baby is born? Why shouldn’t the mother’s partner go through an adoption process, like any other person unrelated to the child?

“Marriage equality,” which is supposed to create equality among married couples, actually ensures that mothers and their children are less equal. The legal wrangling that shifts family law from presuming paternity to presuming parentage requires this absurd result. States can and should avoid creating the legal chaos that ensues when gender is removed from the marital institution.

III. States have an interest in protecting the rights and welfare of children.

In addition to defining the public purpose of marriage, this Court should also consider a related question: what does government owe to children? According to Article 7 of the United Nations Convention on the Rights of the Child, “[A] child . . . shall have the right from birth to a name, the right to acquire a nationality, and, as far as possible, the right to know and be cared for by his or her parents.”

Children, unlike adults, do not need autonomy or independence. The child is entitled to a relationship with and care from both of the people who brought him into being. The “changing American family” referenced in previous cases has left children as its victims, creating structural injustices to children, injustices that would be avoided if their parents committed themselves to permanent relationships with each other.

Some children live with both of their biological parents. Others do not. Some children feel like leftovers from a previous relationship. Others do not. Some children have one permanent home. Others are asked to change their lodgings every week. Some children grow up with the same set of siblings for their entire childhoods. Others come back to one of their homes to find that their stepsiblings and half-siblings have moved, because the adults’ relationship broke up.

These examples illustrate “structural” injustices, because they are inherent in the structure of the child’s particular family. The adults may be good, decent people with good parenting skills. The problem is not with the particular individuals and may not be solvable by the particular individuals. The children have these experiences and feelings, despite adults’ good intentions.

The Ruth Institute did not invent the concept of structural injustices to children as a way of singling out same-sex couples. Amicus Morse has been writing about these problems as caused by heterosexual couples since 2001. Nonetheless, structural injustices to children are prevalent in families led by two persons of the same sex.

Same-sex couples can have children in their homes in several ways: adoption, from a previous heterosexual relationship, or third-party reproduction with a known or anonymous donor. With the possible exception of adoption, these situations all entail structural injustices to children. Permitting same-sex couples to have all the legal rights and privileges of marriage does not change this basic fact.

Children of third-party reproduction may experience all the same problems as children of divorce and more. As adults, these children report feeling longing for their missing biological parent, anxiety about meeting and inadvertently falling in love with a half-sibling, and anger about being partially bought and paid for.

Like divorced and single parents, the adults utilizing third-party reproduction may be good, decent people who love their children. They may have fine parenting skills and be loving people, yet they cannot entirely compensate for the structural inequality that is built into their families. Parents may try vigilantly to rationalize the situation and reassure the children as to how loved they are, but this may not be enough to satisfy the children’s longings to know their missing parent and their full genetic and cultural identities.

This Court should not ignore the far-reaching ramifications its decision could potentially have on all aspects of family life. If this Court finds in favor of petitioners and ignores the longstanding public purpose of marriage, then third-party reproduction, including surrogacy, will become even more prevalent. Advocates of “marriage equality” are already advocating “surrogacy equality.” If third-party reproduction increases, so will the structural injustices to children. Respondent states have a public duty to minimize structural injustice.

This Court must ultimately answer this question: why is “marriage equality” for adults more socially compelling than family structure equality for children? Without a coherent answer to this question, the Sixth Circuit Court’s judgment must be affirmed. States have a rational, vested, and compelling interest in protecting children from structural injustices and negative social outcomes.


Parents have a constitutional right to parent the children they conceived, and children have a corresponding constitutional right to be cared for by their parents. Children have a right to a relationship with both natural parents, absent some unavoidable or compelling circumstance. Children have the right to their identity and to know who they are, including their genetic and cultural heritage.

Genderless marriage significantly impedes the exercise of these important constitutional rights. “Marriage equality” ensures parents and children will have less equality, not more. Supporting the right of familial association helps prevent structural inequalities to children and helps to prevent negative social outcomes. States have the duty to implement laws that work toward these ends.

The thin disguise of marriage equality will not mislead anyone, nor will it atone for the wrong this day done. The attempt to create “marriage equality” will forge other, more serious inequalities and injustices throughout society.

Three generations of social engineering are enough.

If you’d like to read the entire brief, you may do so here.

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