Rules Are for Schmucks: Rule 11 and the Same-Sex Marriage Case

Lawyers live in fear of an edict called “Rule 11.” When a lawyer presents a pleading or brief to a court, the goal is to make the client’s argument as persuasively as possible. What Rule 11 says, though, is that you cannot get carried away and tell the court things that are not true. If you tell the court something that you know is not true, or that you could learn is not true if you did a little checking, you can get yourself in deep personal trouble.

It’s worth taking a look at the brief filed by the self-styled “major religious organizations” in this week’s Supreme Court same-sex marriage case with Rule 11 in mind.

To understand why, it is first necessary to appreciate how the legal principles of this case operate. The couples are arguing that state law bans on same-sex marriage violate the “equal protection” clause of the Fourteenth Amendment to the US Constitution. Equal protection law has two main branches, and then a vaguer middle ground. One main branch is called the “suspect class” analysis, with the classic “suspect class” being race. Almost any law that by its terms treats blacks less advantageously than whites would probably violate the equal protection clause. A law saying that blacks but not whites need to be screened for sickle cell anemia might pass the “suspect class” test, but not much else would.

At the other extreme is the “rational basis” standard. Every law discriminates somehow; even a simple speed limit discriminates against drivers vs. non-drivers. But unless the people being discriminated against fall into a so-called suspect class, as drivers do not, then so long as there is a “rational basis” for the discrimination reflected in the law, it will not violate the Fourteenth Amendment. A law that people born on Tuesdays cannot marry each other might fail the “rational basis” test, but in the real world nearly all laws can satisfy it.

Then there is the gray area—the “sliding scale” between “rational basis” and “suspect class.” If a law discriminates because of “animus” (legal jargon for hostility) against a class, even if it’s not technically a “suspect class,” then the distinction must be justified by something stronger than just a simple rational basis. I could write several thousand more words on this, but I think you get the point.

Many observers predict that the “animus” theory is the likeliest path for the court to choose if it wants to elevate same-sex marriage to a federal constitutional right. The conventional wisdom seems to be that the court will be reluctant to grant LGBTQs “suspect class” status because that could have effects far beyond marriage law, and that it would have a hard time saying that there is no “rational basis” for limiting marriage to a man and a woman, as virtually every civilization has done for thousands of years. The “animus” analysis, though, is delightfully fuzzy, and allows the court to decide at a later date whether there is any baby hidden in the bathwater that ought to not be thrown out if these laws are to be invalidated.

At any rate, the folks who wrote the amicus brief for the “major religious organizations” (including, among many others, the National Association of Evangelicals, the Mormons, the Southern Baptists, the Church of God, and the Missouri Synod Lutherans) must think that the battle will be fought on animus, because they devote most of their brief to attempting to counter it, just as Zack Ford has described regarding a previous brief submitted to the Eighth Circuit. This is where they play sufficiently fast and loose with the facts to warrant a Rule 11 concern. Here are a few examples:

“Contrary to malicious caricatures, we [support the man-woman definition of marriage] not out of animus or ignorance but out of concern, conviction, and love.”

“Our teachings seldom focus on sexual orientation or homosexuality.” Really? I read the Christian Post every day to keep tabs on what the other side is doing. I would venture to say that scarcely a day goes by when I don’t see some kind of snide reference to LGBTQs. On the day I started writing this article, for example, a regular columnist named Michael Brown was ranting, “I believe there is a common thread that unites the new atheism, the radical left, and the gay activist revolution. It is the philosophy that says, ‘We will not have God and His Son rule over us!’” This was near another story fawning over a Christian auto repair shop owner who “won’t hesitate ‘to refuse service to an openly gay person or persons,’” because “homosexuality is wrong, period.”

“Our support for the historic meaning of marriage arises from a positive vision … and not from animosity toward gays and lesbians. Hostility does not lie at the root of religious support for husband-wife marriage.” But the case is not about husband-wife marriage, as they well know— no one is questioning whether that ought to be allowed. It’s about whether same-sex marriage ought to be allowed as well, and hostility to the “abomination” of homosexual acts indeed lies at the root of opposition to that.

“The contention that religious support for husband-wife marriage is founded on animus against gays and lesbians is false.” Again, they’re hiding the ball and misleading the court: the equal protection issue is not whether husband-wife marriage is ok, but whether gays and lesbians should be able to enjoy similar benefits. The question is whether the reason they cannot do so is because of religion-based hostility to homosexuality, and the evidence for that hostility is overwhelming. Leviticus 20:13 is a model of legal precision: “If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death.” Deuteronomy 23:17-18 repeats the “abomination” characterization. In the New Testament, Romans 1:26-27 is equally clear on the topic of “vile affections.”

“Homosexuality is not central to Evangelical Protestant teachings on marriage.” Why, then, did the Southern Baptists title their fall conference “The Gospel, Homosexuality, and the Future of Marriage”? If they didn’t think exclusion of homosexuality was “central” to marriage, why are they bothering to file a Supreme Court brief at all?

If I were given the unpleasant assignment of writing a brief for the anti-same-sex marriage team, I could probably hold my nose and come up with something about respecting the will of the voters, and giving a chance to the federal system where individual state deviations from the norm can be observed over time and then either accepted or rejected by the other states. I would admit that some people are hostile to homosexuality and some are not, but try to argue that the right of non-hostile voters to set rules for an important legal arrangement shouldn’t be affected by that. What I would not do is risk my professional standing (or my wallet) with silly statements that aversion to homosexuality is not what’s motivating my clients to be here in the first place, when the factual evidence to the contrary is so overwhelming.

Maybe it’s a stretch to assert a Rule 11 claim against the authors of this brief. Besides, even if it got anywhere, they’d just wiggle out via their special privileges under the Religious Freedom Restoration Act.