In a friend-of-the-court brief filed Aug. 31, the Ethics & Religious Liberty Commission (ERLC) joined three other religious entities in urging the high court to rule on the Ninth Circuit Court of Appeals' invalidation of Proposition 8, a 2008 amendment approved by California voters that defined marriage as between a man and a woman. The National Association of Evangelicals filed the brief. In addition to the ERLC, the Lutheran Church-Missouri Synod and Church of Jesus Christ of Latter-day Saints also signed onto the brief.
The brief marks another development in the national debate over same-sex marriage, an issue that now awaits Supreme Court consideration in two cases and a possible watershed decision.
The Prop 8 case, which was appealed to the high court by its proponents in July, could decide the constitutionality of laws in 44 states that do not recognize gay marriage. Thirty states have constitutional amendments and 14 states have laws that define marriage in the traditional sense.
Another case appealed to the justices in June could determine if the federal government may define marriage as only between a man and a woman, as it did in the 1996 Defense of Marriage Act (DOMA).
The Supreme Court will determine, possibly this fall, whether it will review lower court decisions that went against advocates of traditional marriage in both cases.
"We're calling on the Supreme Court to overturn the Ninth Circuit and restore government 'of the people, by the people, for the people' in the state of California and across the land," ERLC President Richard Land said. "Californians fully debated the issue and voted to maintain the traditional definition of marriage as between one man and one woman, as has every state that has had the opportunity to express its convictions through the ballot box."
In the new brief, the ERLC and the other groups say the Ninth Circuit's February opinion striking down Prop 8 "misconstrues and misapplies" a 1996 Supreme Court ruling. That decision, Romer v. Evans, overturned a Colorado amendment banning state actions to grant rights to homosexuals. In a 2-1 decision, a Ninth Circuit panel depended on Romer in saying Prop 8 implies "animosity" toward homosexuals even more strongly than did the Colorado amendment.
Prop 8 "could hardly be more different" than the Colorado amendment, the brief by the NAE, ERLC and others says. While the Supreme Court criticized the Colorado measure for its "sheer breadth," the California Supreme Court found Prop 8 "carves out a narrow and limited exception" to the "extremely significant substantive aspects of a same-sex couple's state constitutional right," according to the brief.
The Ninth Circuit ruling "turns Romer on its head, opening the door for federal courts to find 'anti-gay animus' in any affirmative effort by the people to legally preserve the traditional definition of marriage," the brief says.
Their support for Prop 8 is based not on prejudice toward homosexuals but on support for the long-held definition of marriage that "follows from positive teachings about the great worth of traditional marriage, family, and childbearing," the brief's signers say.
"e are in favor of traditional marriage -- not against homosexuals," according to the brief. "Only invidious stereotyping could reduce religious doctrines and practices cherished by millions of Americans to nothing more than irrational prejudice against gays and lesbians."
The brief also urges the Supreme Court to grant review because the Ninth Circuit decision "has enormous national implications," making the high court -- and not the appeals court -- the proper adjudicator in such a case.
Lawyers for Prop 8 opponents have asked the high court not to accept the appeal.
The Supreme Court's new term begins Oct. 1, and the justices could determine before or after that date whether they will review the Ninth Circuit's opinion in the case, which is Hollingsworth v. Perry. They could make a decision about reviewing the other same-sex marriage case in the same time frame.
In that case, lawyers for the House of Representatives asked the high court to accept on appeal the First Circuit Court's May decision rejecting the section of DOMA that defines marriage for federal purposes as only between a man and a woman.
The six states that have legalized gay marriage are Connecticut, Iowa, Massachusetts, New Hampshire, New York and Vermont. Same-sex marriage also is legal in the District of Columbia.
Tom Strode is Washington bureau chief for Baptist Press. With reporting by Michael Foust, associate editor of Baptist Press. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook (Facebook.com/BaptistPress ) and in your email ( baptistpress.com/SubscribeBP.asp).
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