As the Obama Administration is
expected to urge the Supreme Court of the United States to support a
constitutional right for gay men and lesbians to marry, a member of the bar has
filed papers requesting the nation's highest court strike down all the same-sex
marriage laws in the U.S. as a violation of the Constitution's protection of
free speech and association.
Turning the tables on advocates for same-sex marriage who brought the court challenge to the Defense of Marriage Act, which defines marriage for Federal purposes as a union of a man and a woman, the amicus curiae brief filed by Dovid Z. Schwartz argues that the act of forming and maintaining a marriage is essentially an act of free speech warranting Constitutional protection.
The Supreme Court has frequently found that the right to freely associate trumps the government's interest in promoting "equality." Most famous for this principle was the case of Boy Scouts of America v. Dale, where the Court held that the group was not required by New Jersey's public accommodations law to install a gay man as a scoutmaster. The brief argues that marriage declares to the world that a man and a woman have dedicated themselves to each other, and sends the message, with public announcements and wedding rings, that the married partners are not available to others.
Laws that create same-sex marriage do more than expand the class of people entitled to government benefits and protections, argues Dovid Z. Schwartz, the Supreme Court lawyer who submitted the amicus curiae brief in support of the Defense of Marriage Act. Same-sex marriage laws change the message of what marriage means entirely.
A key aspect of the First Amendment defense of marriage as free speech rests on an understanding that marriage stands for an exclusive relationship, fidelity, where the partners declare themselves off-limits to third parties. But according to numerous social science studies, even "long-term" relationships between same-sex partners more often than not remain "open" to third parties. In addition to sending nearly an opposite message about the meaning of marriage as sexual morality, same-sex relationships have been correlated with increased susceptibility to sexually-transmitted diseases due to their open-ended nature.
The argument over California's constitutional amendment, Proposition 8, highlights the centrality of the term "marriage" as being more about speech than simply government benefits. In the Proposition 8 case, same-sex couples were entitled to virtually every single benefit available married couples by California law, except for the word "marriage." This shows that the government itself lacks the moral authority to confer the recognition that same-sex couples seek, the brief argues, without co-opting the term that owes its potency as a cultural symbol to its association and link to religious institutions.
The brief explains that there is a sound public policy for upholding the traditional definition of marriage based upon the widely-held moral beliefs of the American people which are rooted in the Torah. The central moral values of the Torah unite the major world religions known as the "Abrahamic religions" with a common understanding of the true purpose and mission of mankind. "This is not a mere appeal to history or tradition for its own sake, or a preference for continuity in the face of an uncertain future. Rather, the moral laws recorded in the Torah are the headwaters from which flow a deep and abiding faith for countless millions of Americans," Mr. Schwartz wrote to the Supreme Court of the United States.
Included in the laws of the Torah that G-d Almighty gave to the Jewish people at Mount Sinai, a distinct subset of laws, applicable to all mankind, were given over to their safekeeping as well. These principles, called the Seven Laws of the Children of Noah, the brief explains, elucidate the physical, emotional and psychological form of the human being, and the baseline of human society, like anatomy and physiology describe the blueprint and function of the human species.
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