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Supreme Court Asked To Strike Down All Same-sex Marriage Laws In The US

WASHINGTON, Feb. 22, 2013 /PRNewswire/ -- 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.

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