US Supreme Court to pronounce gay marriage verdict

Marriage|September 13th 2014

The US Supreme Court will consider bans on gay marriage currently in place in five states, at a conference on 29 September.

The bans in Virginia, Indiana, Oklahoma, Utah and Wisconsin will all be examined, in order to establish or reject the constitutionality of prohibitions.

Federal courts have overturned several state-level gay marriage bans during 2014.  Under pressure to deliver a national judgement, the Supreme Court is expected to rule absolutely on the laws, though the Justices may decide to postpone a definitive verdict.

Steve Sanders is a law professor at Indiana University. He told the Associated Press:“…sometimes, on a big issue like this, the Supreme Court prefers to wait, and let the issue percolate in the lower courts for a little while.”

In 2013, the Supreme Court declared that the “Defense of Marriage Act” was unconstitutional in a landmark judgement which paved the way for future gay marriage reform.

Since then, the US Circuit Court of Appeals, one level below the Supreme Court, has revoked over a dozen state bans and the 9th Circuit is currently judging bans in Nevada, Hawaii and Idaho.

Photo of the US Supreme Court by Mark Fischer via Flickr

Author: Stowe Family Law

Comments(2)

  1. Andrew says:

    Not quite. The Justices will consider what we could call applications for permission to appeal – bless them, they call it certiorari, I wonder where they got that word from – and it is not likely that they will refuse.

    My American colleagues are always amazed that the Court of Appeal can grant permission to appeal to the Supreme Court, formerly to the House of Lords, and the SC must then take the case.

  2. Stefan says:

    In my view marriage, the union of a man and a woman, is unique.

    1. Marriage implies a potential state of pro-creation. Not mandatory, and in rare cases not possible due to infertility etc. Nevertheless, typically this potential exists. There is no potential for procreation within a homosexual relationship whatsoever. But importantly marriage is a union which can offer children (whether naturally conceived, adopted, or via fertilization techniques) important diversity resulting from combined male and female primary care giving. Same-sex couples cannot offer children this diversity. The environment of combined male and female primary care giving is the most desirable kind of environment to raise a child or to host a child even if only temporarily (more on this further down). Marriage is simply a great way of catering for this requirement. Also, if a couple intending to marry says they do not intend to have children, this does not mean that they won’t in at some point in their life offer a home for a child either temporarily or on the long. This could be foster child, a young relative for whom its parents temporarily cannot provide for because of an unexpected occurrence, an adopted child, or in the case of fertility, they may simply change their mind and conceive a child of their own. So married couples mostly have the potential to procreate and in general offer a fundamentally important service to society in that they offer the most desirable environment for homing and raising children.

    2. Marriage does not imperatively lead to the multitude of serious ethical problems inherently associated with raising of children by same sex couples, for example regarding surrogacy or making the pre-meditated decision before conception to deny a child of any chance of experiencing both of the most beautiful and life-enriching types of relationship possible for a child to know (mother, father).

    3. Marriage also has to do with the a unique form of love between a man and a woman. In a heterosexual relationship sex has the potential to become a unique expression of love, in that this love must not be purely self-involved, but can become love which creates new innocent life. Love creating new life. This is a uniquely profound experience, and cannot be compared with sex for personal fun and enjoyment. Persons within a homosexual relationship can never experience this special kind of love together.

    Due to this uniqueness, a unique descriptor is appropriate for the declared union of a man and woman. “Marriage” is the appropriate descriptor, due to historical association. I don’t believe that it is too much to ask of same-sex couples that they use a different descriptor for their type of union. One of the desirable characteristics and assets of language is that it allows us to differentiate between things and perceptions which are not the same. I see no reason to counteract this asset regarding the union of two human beings. The union between a man and a woman is in my view quite obviously sufficiently different from the union between two men or two woman, so that a differentiation in language is nothing other than sensible and logical, and in no way derogatory.

    Since inevitably children’s interests are affected differently by the environment created by marriage and that created by same sex unions, legal differentiation also seems appropriate to me. For example precedence could be given to married couples in joint child adoption, or if there were more than enough qualified married couples available to adopt, a general ban on joint adoption by same-sex couples might be appropriate. It appears to me that the association between marriage and founding a family in the Article 16 of the Universal Declaration of Human Rights implies a combined right, and that marriage and founding a family belong together, are complementary and should be legally associated.

    Regarding raising of children, same sex couples are inherently disadvantaged compared with opposite sex couples. The objection that there is a large body of sociological-psychological studies which apparently tell us that same sex parenting is not harmful to children is not a proper scientific approach to the issue (I’ll come to the reasons later). Also, I believe sociology and psychology alone are too limited to properly answer a question which touches moral issues (dignity of the child; prioritization of children’s rights and interests).

    Types of relationships important to adults are for example friends, best friends, colleges, family members, neighbors, spontaneous acquaintances. I would ask supporters of same sex adoption to ask themselves the following question: Would you accept it if the state or another superordinate entity determined that you may only interact and acquaint with either males or females, not both, regarding only one of the aforementioned types of relationships? Would such a restriction be acceptable to you, even if a psychologist claimed that it would not be harmful? Is the diversity which you experience when interacting with both males and females not fundamentally meaningful to you?

    I cannot imagine that anybody would tolerate such a restriction, but would defend his or her fundamental right of freedom to enjoy interaction with both sexes in all areas of life where this is possible.

    So, I think its evident that an important aspect of this issue is diversity from the perspective of the child.

    Infants have the capacity to differentiate between feminine and masculine and between mother and father. Children evidently love the difference between their mum and dad and they love to interact with both as different expressions of the relationship with a parent. So, I think it is incomprehensible, that supporters of joint same sex adoption have the attitude that it is acceptable to make the decision to deliberately deprive children of the beautiful diversity inherent to combined male and female parenting before conception, in spite of the fact that they themselves would probably not tolerate an analogous restriction regarding only a single type of relationship of considerably less importance than the most, meaningful and intimate relationship children can know: the relationship with their parents (nurturer, role model, best friend, teacher all in one). Unless the moral implications are suppressed or verifiably no qualified opposite sex couples are available for child adoption.

    Concerning sociology, psychology and studies: I cannot see how studies alone can allow a conclusive evaluation of the state of scientific knowledge, especially regarding psychology and sociology which are not exact sciences. Surely studies have to be evaluated within the context of the broader activities and practice of any science. The “knowledge” or the assumptions arrived at through psychology are attained from a combination of procedures consisting in observation, measurement, experiment, the formulation and testing of theories and hypotheses. For example, a well conceived theory can be of greater value than measurement or experiment which is afflicted with inadequate resolution or methodology. An analogy: At the time when Albert Einstein published the Theory of Relativity, all empirical measurements and all performed experiments showed that Newton’s laws of motion and gravitation were in fact correct and precise. But Einstein’s Theory of Relativity alone showed that the measurements being made were not precise enough, and that Newton’s laws of motion and gravitation were strictly speaking incorrect.
    I believe a similar situation exists regarding the so far published studies on same sex parenting. Logically we must contemplate that these studies, which say that there is no appreciable difference between the outcomes of children raised by same sex couples and those raised by a mother and a father are either giving us a valid representation, or they are simply methodologically inadequate to expose differences in outcomes. So, to evaluate the validity of the results of these studies a critical examination of the methodology and also importantly a careful comparison and juxtaposition with the predictions of well established theories on child development are surely in order.

    I am astounded how inadequate these studies are. I’m neither psychologist nor sociologist, but the flaws are so grave and obvious, I’m sure they could easily be spotted by any intelligent school pupil of age 16 to 18! It appears that a portion of the scientific community is derailed. I rarely hear a high standing expert of the scientific community openly criticising the intolerably low standard of some of these peer reviewed sociological-psychological studies. Science is quite obviously being used to transport ideology, and although this must be quite obvious to anybody with integrity working in these areas of science, they don’t appear to have the courage to expose this fact.

    Instead of deriving the participants from a large pool of randomly chosen subjects, the participants of these studies are acquired via “self-selection”. This is a serious flaw in any sociological study, probably a result of cost restraints. To my knowledge, strangely, the full spectrum of available psychological test methodology is not implemented in any of these studies. Specifically they lack comprehensive exploration of the state of the unconscious mind of the children through projective testing, examination of the child’s ‘active imagination’ or dreams. Many of the studies rely purely on tests based on limited self-assessment. If a subject has been deprived of a fundamental, life enriching aspect of life, but has never actually existed in a situation in which he could realize this because he has had no direct, personal experience of this aspect, then it is likely that self-assessment is inadequate to expose possible effects of such a deprivation, whereas comprehensive exploration of the unconscious mind could uncover effects. Illogical assumptions, unsuitable comparison groups, non-standard or unsuitable implementation of interviewing, non-representative samples, the list goes on.

    I believe it is not inappropriate to conclude that the studies so far implemented are too flawed and inadequate to be of significance regarding a valid scientific verdict on the issue.

    On the other hand, C.G. Jung’s theory of Archetypes is well established in psychology. The mother archetype and the father archetype exist congenitally (not acquired after birth) in the unconscious psyche of all children. Hence children must have an unconscious expectation to interact with both a mother and a father. The existence of these archetypes is hardly disputed, since there is ample evidence of their spawning of symbolic activity in the dreams of humans of all ages on a cross-cultural level. The mother archetype is an innate disposition to experience and recognize “mothering.”. The father-child relationship is governed by the father archetype.

    The mind’s reaction upon perceiving an object, for example a tree, is spontaneous categorization via memory; mental (interpretive, associative thought processes); emotional (associated emotions or feelings, and desires of the sub-conscious mind); and archetypical. An archetypical reaction occurs when archetypical content is projected onto the perceived object. Its the archetypical reaction which imparts the most profound experience. The powerful mother archetype is most easily and naturally projected onto the nurturing, feminine facial expression of a female primary care giver. That’s one reason why experiencing motherly love is such a uniquely profound and satisfying experience for any child. It’s also the reason why motherly love is not experienced when a child interacts with a father. Hence, because of the existence of these two archetypes, the most natural and desirable family constellation from the child’s perspective is a mother-father-child constellation.

    So factoring in the flawed, inadequate studies, a well conceived, established, theory underpinned by observations made by care givers, child carers and even psychologists that children evidently enjoy the diversity offered to them by combined male and female care giving, I would conclude that the present state of psychology indicates that it is undesirable to deliberately deprive a child of either a father or a mother and joint adoption by same sex couples should be avoided. The natural and healthy family environment for raising a child does appear to be a family with both a mother and a father.

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