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Saturday, April 26, 2014

Courts - Fascinating amicus brief filed by "Historians of Marriage" in 4th Circuit

While looking through the invaluable collection of briefs collected at Equality Case Files (website forthcoming at equalitycasefiles.org), the ILB ran across this brief, which is fascinating reading, filed 4/18/2014 by a long list of "historians of marriage" in support of Plaintiffs-Appellees in Bostic v. Schaeffer, on appeal to the 4th Circuit. The "Interest of Amici Curiae" reads:

Amici are historians of American marriage, family, and law whose research documents how the institution of marriage has functioned and changed over time. This brief, based on decades of study and research by amici, aims to provide accurate historical perspective as the Court considers state purposes for marriage.

Amici support Plaintiffs-Appellees’ position that allowing same-sex couples to marry is consistent with government purposes for marriage. In view of the changes over time in marriage, amici cannot credit Defendant-Appellant’s arguments that reasons such as “tradition. . . , responsible procreation, and optimal child rearing” justify prohibiting same-sex marriages. (Appellant’s Opening Brief at 40.) The removal of restrictions on choosing a marital partner of one’s own sex accords with the ongoing historical direction of change in marriage rules.

The "Summary of Argument" begins:
In the United States, marriage has changed significantly over time to address changing social and ethical needs, while inheriting and retaining some essential characteristics from English common law. Marriage in all the United States has always been under the control of civil rather than religious authorities. Religious authorities were permitted to solemnize marriages by acting as deputies of the civil authorities only. While free to decide what qualifications they would consider valid by religious precept, they were never empowered to determine the qualifications for entering or leaving a marriage that would be valid at law.

Marriage is a capacious and complex institution. It has political, social, economic, legal and personal components, and conveys meanings and consequences that operate in several arenas. Marriage has served numerous purposes during this nation’s history. It has been instrumental in facilitating governance; in creating stable households, leading to public order and economic benefit; in assigning providers to care for dependents (including minors, the elderly and the disabled); in legitimating children; in facilitating property ownership and inheritance; and composing the body politic. Recognizing multiple purposes in marriage, the states have seen marriage as advancing the public good whether or not minor children are present. Only a highly reductive interpretation would posit that the defining characteristic of marriage is the married pair’s procreation or care of biological children, since marriage has been important in numerous ways.

Marriage has long been entwined with public governance. The relation between marriage and government is visible today in both federal policy and state laws, which channel many benefits and rights of citizens through marital status. Every state gives special recognition to marriage, in areas ranging from tax to probate rules. Federal law identifies more than 1,000 kinds of benefits, responsibilities and rights connected with marriage, as the General Accounting Office reported in 2004. U.S. Gen. Accounting Office, GAO-04-353R: Defense of Marriage Act: Update to Prior Report (2004); see also United States v. Windsor, 133 S. Ct. 2675, 2683 (2013).

Posted by Marcia Oddi on April 26, 2014 10:00 AM
Posted to Courts in general