In two friend-of-the-court briefs, the Ethics & Religious Liberty Commission (ERLC) joined the National Association of Evangelicals (NAE) and other religious groups in urging the high court to rule in favor of a federal law and a state amendment that define marriage as between a man and a woman. The briefs, filed Jan. 29, are in cases for which the Supreme Court will hear oral arguments March 26 and 27 and likely issue rulings before its summer adjournment.
The Supreme Court's much-anticipated decisions in the cases could prove momentous in an ongoing, national debate -- resulting in either the legalization of same-sex marriage or the affirmation of laws protecting traditional marriage.
The ERLC, NAE and others urged the court in one brief to overturn the U.S. 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. In the other brief, they called on the high court to reverse the Second Circuit's ruling against a section of the Defense of Marriage Act that also defines marriage in federal law as only a heterosexual union.
ERLC President Richard Land said the briefs seek to "combat anti-religious discrimination."
Such discriminatory treatment by courts "would seek to disqualify the votes of people of religious conviction or to say, 'If your vote was based on religious conviction, it's somehow disqualified from the debate,'" Land told Baptist Press. "That's anti-religious bigotry, and these briefs point that out and defend the right of people of religious conviction to be treated with equal value with those who don't have such convictions. Anything less is anti-religious bigotry by any other name."
In their brief in the Prop 8 case, the ERLC and its allies contend the Ninth Circuit unjustly depicted the amendment as "a product of anti-gay animus," or hostility.
Support for the proposition was based on "sincere beliefs in the value of traditional marriage for children, families, society, and our republican form of government," the brief says. "Only a demeaning view of religion and religious believers could dismiss our advocacy of Proposition 8 as ignorance, prejudice, or animus."
The ERLC and the others say in the brief they "are united in condemning hatred and mistreatment of homosexuals." They believe "God calls us to love gays and lesbians" while defending traditional marriage, they say.
Prop 8 "must be judged on its merits according to settled rules of laws -- not on a more demanding standard born of antipathy toward religion or religious believers," according to the brief. "That Proposition 8 was supported by some religious voters or is in harmony with some religious views is constitutionally irrelevant."
Heightened scrutiny of a law by a court "because of its support by religious voters or its relation to religious beliefs would raise serious First Amendment concerns," the ERLC and the others argue. "Increased scrutiny could result in the disenfranchisement, or at least dilute the voice, of religious voters."
The brief acknowledges Prop 8 "takes sides in the moral debate over same-sex marriage" but says such a value judgment cannot be escaped.
"California's endorsement of traditional marriage as a policy preference does not transgress constitutional limits any more than the thoroughly moral judgments expressed in laws regulating obscenity ... or abortion ...," the brief says.
In the DOMA brief, the ERLC and its allies contend using DOMA's adherence to "traditional moral and religious beliefs" would contradict previous Supreme Court rulings that do not permit government to treat religion and religious adherents as subversive.
A "taproot of American citizenship would be damaged if votes cast by the religious -- or by their representatives when influenced by religious values -- were evaluated more critically by courts than other votes," the brief says.
"DOMA is entitled to be judged on its merits according to settled rules of law -- not on a more demanding standard born of suspicion toward religion, religious believers, or their values."
In addition to the ERLC and NAE, the other organizations signing onto the Prop 8 brief were the Church of Jesus Christ of Latter-day Saints (Mormons), Lutheran Church-Missouri Synod, Union of Orthodox Jewish Congregations of America, Romanian-American Evangelical Alliance of North America and Truth in Action Ministries. The same organizations joined in the DOMA brief except for the Union of Orthodox Jewish Congregations.
If the Supreme Court agrees with the lower court's invalidation of Prop 8, the 41 states that do not recognize same-sex marriage could be forced to do so. If it agrees with overturning DOMA, the federal government would have to recognize gay marriages in the nine states where it is legal.
The states that have legalized same-sex marriage are Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Washington and Vermont. Gay marriage also is legal in the District of Columbia.
California voters approved Prop 8 after the state Supreme Court had legalized gay marriage earlier in 2008. Congress passed DOMA, and President Clinton signed it into law, in 1996.
The Prop 8 case is Hollingsworth v. Perry, while the DOMA case is United States v. Windsor. Oral arguments in the Prop 8 case will be March 26, while they will be March 27 in the DOMA appeal.
Tom Strode is Washington bureau chief of 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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