By Marcia Coyle, From Supreme Court Brief

From the personal to the legal to the religious, opponents of same-sex marriage offer the U.S. Supreme Court a potpourri of arguments in support of their belief that the court should uphold state bans.

A property owner claims same-sex marriage would erode his property and personal values. A Connecticut lawyer says it would legalize a man marrying his brother or father, even “a man’s marrying a female blood relative—if she is too old to get pregnant.” A group that supports former Arkansas Gov. Mike Huckabee urges the high court to follow his lead and not be the “Supreme Being” that “judicial supremacy” has created.

A group of Christian and evangelical organizations and speakers detail how religious dissenters have been chilled in their speech opposing same-sex marriage. They urge the justices, when they rule, to reaffirm the First Amendment’s protection of those dissenters and of open debate.

Forty-seven scholars holding differing views of sexual and family ethics argue that the Constitution leaves the marriage-equality question to the political processes, not the high court. And “scholars of originalism” counter the arguments the libertarian Cato Institute made under that theory in support of same-sex marriage.

In all, same-sex marriage opponents filed 64 amicus briefs. Combined with the 73 briefs in support and five expressing support for neither party, the justices—more likely their clerks—face a heavy lift reading 142 amicus briefs.

Veteran high court advocate Gene Schaerr, who left his partnership in Winston & Strawn last year to defend Utah’s marriage ban, played a key role in coordinating opponents’ amicus effort. “There were a number of people who helped with the effort,” he said.

Schaerr’s involvement in the marriage issue predates his work on behalf of Utah. “It wasn’t completely new to me,” he said. “My wife and I had been involved politically in the marriage issue in Maryland [in 2012]. I was familiar with a good bit of research.”

In the Supreme Court cases, which will be argued on April 28, he reviewed the drafts of a number of amicus briefs.

“In a lot of cases, I encouraged different groups and authors to combine forces,” he said. “Sometimes I was and wasn’t successful. It’s unfortunate to see such a huge proliferation of briefs on either side, but a lot of persons and organizations want to be sure their voices are heard.”

He added: “It would be a herculean task to read everything. It’s a herculean task just to read the [main] parties’ briefs.”

Schaerr drafted two amicus briefs, one of which—filed on behalf of “100 Scholars of Marriage”—resulted in six spinoff briefs. The other was on behalf of Idaho Gov. C.L. “Butch” Otter.

“I looked back at the amicus briefs filed in the Perry,” Schaerr said, referring to Hollingsworth v. Perry, the 2013 ruling in which the high court found no standing to challenge California’s same-sex marriage ban. “I thought they were good on our side, but our side had not made as powerful a social science case for the traditional definition of marriage as could be made.”

The earlier debate, he said, focused almost entirely on what was best for the children of gay and lesbian couples. “I felt nobody made an effort to articulate the more important issue of what impact the redefinition of marriage is going to have on kids of heterosexual couples.”

Schaerr kept looking for someone who could make that argument and, finding that no one had done it yet, “I convened a core group of social scientists and we began to craft the brief and filed earlier versions of it in the circuit court cases.”

They soon found it impossible to address all of the issues in one 9,000-word brief, he said, so they sought other scholars to address more discrete issues. “We ended up with groups of scholars that sort of peeled off from brief I had been working on.”

The result is amicus briefs discussing gender diversity in parenting; the importance of biological connections between parents and children; the connection between same-sex marriage and declining fertility rates; the lack of harm to the personal liberty of same-sex couples if traditional marriage is upheld; the potential harm from same-sex marriage to women and their children in underprivileged groups; and that children of married same-sex couples do worse than those of unmarried same-sex couples.

Schaerr’s own brief on behalf of the 100 marriage scholars relies heavily on comments made by Justice Anthony Kennedy during the arguments in Perry and United States v. Windsor (the successful challenge to the Defense of Marriage Act) and the Windsor dissent by Justice Samuel Alito Jr. Kennedy suggested that the unknown danger from same-sex marriage to children and society could be akin to “jumping off a cliff.” Alito said the issue calls for “judicial caution and humility.”

“We felt it made sense to start with the concerns they expressed and why those concerns are valid,” Schaerr said. “It’s not to say we think the Supreme Court should tell states they cannot or should adopt same-sex marriage. It’s just a powerful additional reason to leave this decision to the democratic process. If it turns out same-sex marriage has negative effects based on the analysis we have done, it makes sense to leave that in the hands of the people. They can make modifications or perhaps reverse it, which couldn’t be done with a Supreme Court decision.”

Unlike the amicus briefs of their opponents, the 65 briefs against same-sex marriage are notable for a lack of involvement by major law firms. Solo practitioners, small firms and lawyers within special-interest organizations dominate the drafters.

“Unfortunately, not all, but some, elements of the marriage-equality movement use retribution against those who disagree to advance their cause,” Schaerr said. “Everybody on our side understands that’s just a fact of life—the reality you face if you try to defend the traditional understanding of marriage.”

The amicus briefs on each side can be found on the Supreme Court website. For a comparison of the lawyers as counsels of records, click here at: http://www.nationallawjournal.com/id=1202723628123

IMAGES: Demonstrations against same-sex marriage outside the U.S. Supreme Court on the day of arguments in the case challenging California’s Prop 8 legislation. Diego M. Radzinschi

Five amicus briefs that were filed in support of neither party

For more on this story go to: http://www.nationallawjournal.com/supremecourtbrief/id=1202723624064/SameSex-Marriage-Foes-Send-High-Court-64-Amicus-Briefs#ixzz3XUaTOqyP