Supreme Court urged to leave marriage definition to the states

Baptist Press
Posted: Feb 28, 2013 5:22 PM
WASHINGTON (BP) -- Urging the Supreme Court not to legalize gay marriage for all 50 states, supporters of California Prop 8 say in a court brief that opposite-sex couples' unique ability to procreate -- thus benefiting society by "creating and nurturing the next generation" -- provides states with a rational reason to define marriage in the traditional sense.

The 65-page opening brief by -- the official proponents of Prop 8 -- asserts that children need a mother and a father, and it even quotes President Obama, a supporter of gay marriage, as he underscored the need for fathers in children's lives.

The Supreme Court will hear two cases March 26-27 that could either affirm the historical definition of marriage or legalize gay marriage for the entire nation. One case concerns a portion of the Defense of Marriage Act that defines marriage for the federal government, while the other case involves Prop 8, a 2008 state constitutional amendment that defined marriage as between a man and a woman. It is the Prop 8 case that could lead to the most wide-sweeping ruling, potentially wiping out similar constitutional amendments and laws in 41 states -- and, overnight, legalizing gay marriage. Currently, only nine states recognize gay marriage. The U.S. Ninth Circuit Court of Appeals overturned Prop 8.

The brief does not mention Roe v. Wade, the 1973 law that legalized abortion nationwide, but in a series of paragraphs it does make the argument that a Supreme Court ruling legalizing gay marriage would be viewed as illegitimate by a large segment of the population -- similar to how many people still view Roe. The brief even mentions that just last November, three states legalized gay marriage at the ballot. If gay marriage is to be legalized, it should be done by the people, not the courts, the brief says.

"Controversial social policy issues such as this are particularly well suited, of course, for the give and take of the democratic process, where individuals may persuade or be persuaded, and where broad public participation, compromise, and incremental change are not only possible but likely," the brief states. "Decisions reached through this process are more likely to be regarded by a free people as legitimate and to be widely accepted than decisions reached in any other manner."

Governments have not limited marriage to opposite-sex couples out of any hatred of gays, but instead out of a desire to ensure children are raised in stable homes, with a mother and father, the brief repeatedly states.

"The gendered definition of marriage has prevailed in all societies throughout human history not because of anti-gay animus but because marriage is closely connected to society's vital interests in the uniquely procreative nature of opposite-sex relationships," the brief says. "It has always been, and is now, supported by countless people of good faith who harbor no ill will toward gays and lesbians."

States provide marriage licenses and benefits to opposite-sex couples because society has a "vital" interest in "responsibly creating and nurturing the next generation," the brief states.

That unique ability to procreate can either help or harm a society, the brief asserts. It becomes harmful when children are born out of wedlock, without a mother or father, and grow up in an unstable home.

"An animating purpose of marriage is to increase the likelihood that children will be born and raised in stable and enduring family units by their own mothers and fathers," the brief states. "Because relationships between persons of the same sex do not have the capacity to produce children, they do not implicate this interest in responsible procreation and childrearing in the same way."

When parents do not take responsibility for raising their children, "society is often forced to assist through social welfare programs and other means." Divorce and unwed childbearing costs U.S. taxpayers at least $112 billion each year, the brief says, quoting a study. The brief then quotes Obama as saying in 2008, "Children who grow up without a father are five times more likely to live in poverty and commit crime; nine times more likely to drop out of school, and twenty times more likely to end up in prison."

The "indisputable difference" between same-sex and opposite-sex relationships in the ability to procreate "demonstrates that Proposition 8 is constitutional," because the Constitution requires only that a state "treat similarly situated persons similarly, not that it engage in gestures of superficial equality," the brief says, quoting a 1981 Supreme Court ruling on a different subject.

Legalizing gay marriage, the brief says, would transform "marriage from a public institution with well-established, venerable purposes focused on children into a private, self-defined relationship focused on adults." This would denigrate "the importance of mothers and fathers raising the children they create together."

"It is certainly reasonable to fear," the brief asserts, "that officially changing the public meaning of marriage in this manner will send a message that the desires of adults, as opposed to the needs of children (or any other social good that transcends the marriage partners), are the paramount concern of marriage and may weaken the social norms encouraging parents, especially fathers, to make the sacrifices necessary to marry, remain married, and play an active role in raising their children."

Furthermore, the brief says in quoting a paper from the Witherspoon Institute, legalizing gay marriage "would undermine the idea that children need both a mother and a father, further weakening the societal norm that men should take responsibility for the children they beget."

The Supreme Court has nine justices, four of whom are considered more conservative and four more liberal. The swing vote on social issues often has been Justice Anthony Kennedy.

The debate over marriage, the brief concludes, should be left to the states.

"'Americans are engaged in an earnest and profound debate about the morality, legality, and practicality' of redefining marriage, and this

Court should 'permit this debate to continue, as it should in a democratic society,'" the brief concludes. "Affirming the Ninth Circuit's ruling would necessarily 'short-circuit' this debate."

Michael Foust is associate editor of Baptist Press. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook ( ) and in your email (

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