ERLC: Time is now for marriage ruling

Baptist Press
Posted: Sep 08, 2014 5:52 PM
WASHINGTON (BP) -- The Southern Baptist Convention's religious freedom entity has told the U.S. Supreme Court the time to rule on same-sex marriage has arrived.

The Ethics & Religious Liberty Commission (ERLC) joined four other faith organizations representing tens of millions of Americans in a Sept. 4 brief urging the justices not to delay in deciding the constitutional status of marriage between people of the same sex. If the high court agrees to review one or more lower-court decisions on the issue in this term, it likely would announce a ruling before it adjourns next summer.

"The time has come to end the divisive national debate as to whether the Constitution mandates same-sex marriage," the ERLC and its allies say in the brief. The current legal ambiguity is burdening religious organizations and people of faith, they say.

"The American people deserve to know whether deems same-sex marriage a fundamental right beyond the reach of democratic majorities" among voters and state legislatures, according to the brief.

The ERLC, which opposes legalizing same-sex marriage, welcomed the opportunity to petition the justices on the issue at this time, said its president, Russell D. Moore.

"We are happy to speak to the Court in this brief because much is at stake in the question of marriage," Moore told Baptist Press in a written statement. "No human court engineered marriage in the first place, and no human court should deconstruct it."

The ERLC joined the U.S. Conference of Catholic Bishops, the National Association of Evangelicals, The Church of Jesus Christ of Latter-day Saints and The Lutheran Church-Missouri Synod in the brief.

Some same-sex marriage advocates also filed briefs Sept. 4 urging the Supreme Court to grant review in one or more of the cases. Among those urging high court action from the pro-gay marriage side were 15 states and such leading American corporations as Amazon, General Electric, Nike and Target.

The requests for the Supreme Court to act soon came after a nearly complete judicial sweep by same-sex marriage proponents in the last 14 months. Courts have issued more than three dozen opinions in favor of gay marriage since the justices struck down a section of the federal Defense of Marriage Act (DOMA) in June 2013, saying it violated "equal protection" under the Constitution by refusing to recognize same-sex marriages. Though the high court refused to say states could not limit marriage to heterosexual couples, most courts have used the decision as a basis for striking down state laws that define marriage as only between a man and a woman.

After that 2013 ruling, many defenders of God-ordained, male-female marriage contended the high court had provided the framework for legalizing gay marriage throughout the country.

In their brief, the ERLC and its allies say, "Marriage between a man and a woman is for us an article of faith and a profound social good."

The invalidation by federal judges and appeals courts of state laws protecting the traditional view of marriage is not only mistaken but has placed "religious organizations and their members in a legal limbo where their rights and duties are unclear," according to the brief.

The legal confusion, the brief says, poses "thorny questions" for religious individuals and organizations:

-- "Is their right to refrain from participating in, recognizing, or facilitating marriages between persons of the same sex, contrary to their religious convictions, adequately shielded by the First Amendment and other legal protections?

-- "Or is further legislation needed to guard religious liberties in these and other sensitive areas?"

The ERLC-endorsed brief encourages the Supreme Court to grant review specifically in a case involving Utah's marriage law. The 10th Circuit Court of Appeals in Denver struck down Utah's limitation of marriage to heterosexual couples, and the state has petitioned the justices to rule on that opinion.

The Utah case would be "an attractive vehicle" for a ruling on same-sex marriage because the 10th Circuit "rejected spurious allegations of voter animus" as a motivation in banning same-sex marriage, the brief says. If it reviews the Utah case, the justices "will not need to address the inflammatory and unjust accusation that the support of religious organizations and their members for traditional marriage is rooted in prejudice or animosity," according to the brief.

Among other reasons given in the brief, the ERLC and its allies also contend the Utah case should be reviewed by the high court because the 10th Circuit "squarely addressed" the state's argument that its laws seek to avoid possible battles between gay marriage and religious freedom. Other courts have not dealt with that issue, the brief says.

In other appeals court rulings so far, the 10th Circuit also invalidated Oklahoma's marriage law; the Fourth Circuit in Richmond, Va., nullified Virginia's; and the Seventh Circuit in Chicago struck down laws in Indiana and Wisconsin Sept. 4. The Fifth, Sixth and Ninth circuits are considering similar laws from other states, according to the ERLC-endorsed brief.

Nearly two dozen federal courts had ruled for same-sex marriage since June 2013 before Martin Feldman, a judge in New Orleans, broke the streak Sept. 3 by upholding Louisiana's law in support of traditional marriage.

Before Feldman's opinion, decisions by state judges in Tennessee, Mississippi and Florida were the only ones to conflict with the pro-gay marriage trend over the last 14 months, according to SCOTUSblog, which tracks developments at the Supreme Court.

Gay marriage is legal already in 19 states and the District of Columbia. Among the states with legalized same-sex marriage are all those in the Northeast and on the West Coast.

The Supreme Court opens its next term Oct. 6.

Tom Strode is the Washington bureau chief for Baptist Press, the Southern Baptist Convention's news service. BP reports on missions, ministry and witness advanced through the Cooperative Program and on news related to Southern Baptists' concerns nationally and globally. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook ( and in your email (

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