In the new Sidebar column, Adam Liptak chronicles how Utah’s arguments in favor of their SSM ban have evolved from before Judge Shelby to the stay before the Court, to the reply brief. In short, Utah has dropped the “responsible procreation” argument, which I noted earlier would not gain any traction.
In the trial court, they started with “reasonable procreation.”
In the trial court, the state had argued that restricting marriage to a man and a woman would make heterosexual couples act more responsibly when they had sex. In the Supreme Court, the state threw that “responsible procreation” argument overboard in favor of one focused on “optimal parenting.” By the time it filed its final brief on Jan. 6, the state had introduced a fresh argument, drawn from the Supreme Court’s decisions on affirmative action.
The state’s first argument, made before Judge Robert J. Shelby of the Federal District Court in Salt Lake City, was that “the traditional definition of marriage reinforces responsible procreation.” The government benefits that come with marriage, the state said, encourage opposite-sex couples to form stable families “in which their planned, and especially unplanned, biological children may be raised.”
Then they turned to “social science” research showing children are best raised by biological-married parents.
In the Supreme Court, state officials changed tack and pressed a different argument, one built on a contested premise.
“A substantial body of social science research confirms,” the brief said, “that children generally fare best when reared by their two biological parents in a loving, low-conflict marriage.”
Next they pivoted to a policy of pursuing “gender diversity” in marriage.
In the Supreme Court, Utah refined its argument.
“The state does not contend that the individual parents in same-sex couples are somehow ‘inferior’ as parents to the individual parents who are involved in married, mother-father parenting,” the state said.
But, drawing on Supreme Court decisions endorsing the value of diversity in deciding who may attend public universities, the state now said it was pursuing “gender diversity” in marriages. “Society has long recognized that diversity in education brings a host of benefits to students,” the brief said. “If that is true in education, why not in parenting?”
Did I read that right? Here is the full excerpt from the brief.
Although they attempt to address the first proposition — i.e., that children generally do better in various ways when raised by a mother and father, at least one of whom (or preferably both) is a biological parent — Respondents attack a straw man: They mischaracterize this point as an argument that “same-sex parents are inferior to opposite-sex parents.” That is not the point: The State does not contend that the individual parents in same-sex couples are somehow “inferior” as parents to the individual parents who are involved in married, mother-father parenting. The point, rather, is that thecombination of male and female parents is likely to draw from the strengths of both genders in ways that cannot occur with any combination of two men or two women, and that this gendered, mother-father parenting model provides important benefits to children.
That this would be so is hardly surprising. Society has long recognized that diversity in education brings a host of benefits to students. If that is true in education, why not in parenting? At a minimum, the State and its people could rationally conclude that gender diversity — i.e., complementarity — in parenting is likely to be beneficial to children. And the State and its people could therefore rationally decide to encourage such diversity by limiting the coveted status of “marriage” to man-woman unions.
My concerns about Monte Neil Stewart’s qualifications to appear in this case grow.