The institution of traditional marriage, which predates virtually all governments, is a compelling state interest, because it benefits children, asserts a brief in support of Florida’s law defining marriage as the union of one man and one woman.
“The preeminent social purpose of marriage – and the overriding reason why government recognizes marriage – is to connect children to both of their biological parents, argues a brief submitted by the Alliance Defending Freedom to the 11th U.S. Circuit Court of Appeals on behalf of supporters of a Florida law defining marriage as the union of one man and one woman.
In August, a judge in the U.S. District Court for the Northern District of Florida issued an order striking down the law. The order was stayed pending appeal.
“By joining a man and a woman in a committed relationship, society forges a link between sex, procreation, and childrearing,” the brief explains. “And by socially connecting these three closely related activities, marriage encourages a man and a woman in a sexual relationship to remain together and jointly care for the children they produce.”
The brief says “the man-woman-marriage laws challenged here satisfy constitutional review because they substantially further the state’s compelling interest in connecting children to both of their biological parents.”
The U.S. Supreme Court decided only a few weeks ago not to rule on whether same-sex “marriage” will be imposed across America. The court left standing mid-level court rulings that states could not ban same-sex marriage.
Since then, however, the 6th U.S. Circuit Court of Appeals confirmed that voters in at least four states – Kentucky, Michigan, Ohio and Tennessee – are allowed to define married as being between one man and one woman.
The ADF brief in the Florida case says the state “best serves children when it adopts laws and policies that promote the biological home.”
“Man-woman-marriage laws do just that,” the brief explains, citing a raft of issues for children, including “roadblocks to identity development,” an innate desire to hunt down and learn about biological parents, and “deeply rooted frustration, depression, anxiety and sadness.”
“And their physical health is often compromised because they typically do not know, and lack access to, their biological parents’ medical history,” the brief explains.
ADF Senior Counsel Byron Babione said “the people of Florida – and every state – should continue to have the freedom to affirm marriage as the union of a man and a woman in their laws.”
“As the U.S. Supreme Court concluded in its Windsor decision last year, marriage law is the business of the states. States that choose to affirm marriage as a man and a woman have vital reasons for doing so,” he said.
ADF Legal Counsel Ken Connelly said the Constitution “does not demand that one irreversible view of marriage be judicially imposed on all the states.”
“As our brief explains, marriage has always played an essential role in protecting the welfare of the next generation by linking children to both of their biological parents, and that is a compelling government interest of the highest order,” Connelly said.
The brief provides numerous stories and social science evidence of the importance of children knowing and being raised by both of their biological parents, observing that “encouraging family arrangements where children are raised apart from one or both of their biological parents frustrates their ability to know themselves and form their identities.”
“As one person separated from her biological father tellingly revealed: ‘I think of myself as a puzzle; [but] the only picture I have ever known is half complete.’ … In contrast, children reared in intact biological homes benefit from access to all these pieces when building their life story.”
The issue is being raised in several other appellate courts
Mat Staver, chairman of Liberty Counsel, which has fought on behalf of traditional marriage, said it’s becoming more likely the Supreme Court will need to resolve differences between the lower courts.
Previous rulings from the high court on the issue have found that the institution is necessarily defined as the union of one man and one woman. In 1942, it said marriage is “fundamental to the very existence and survival of the race.” In 1888 it ruled, “An institution in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress.”
Staver said marriage “is not merely a creation of any one civilization or its statutes, but is an institution older than the Constitution and, indeed, older than any laws of any nation.”
“Marriage is a natural bond that society or religion can only ‘solemnize,'” he said.
The 6th Circuit agreed in a 2-1 decision, concluding no federal judges should be making such a decision.
“Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea. Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us – just two of us in truth – to make such a vital policy call for the thirty-two million citizens who live within the four states of the Sixth Circuit.”
The pro-homosexual Marriage Equality organization called the ruling “out of step with the decisions of 40 other courts.”
The organization said states as diverse as “Oklahoma, West Virginia, and Utah” recently have “embrace[d] marriage equality.”
“It is clear that the freedom to marry is a fundamental constitutional right that belongs to all Americans, not just some Americans,” said spokesman John Lewis.
But the organization did not note that a vast majority of the states that have embraced same-sex marriage have done so largely by judicial decree. Voters in many of those states specifically chose to define in their laws or even constitution marriage as one man and one woman.
Before federal judges stepped in, the wave of state affirmations of traditional marriage was virtually unstoppable, with victories in 31 of 31 elections.
Critics have argued that if the traditional definition is dropped, there would be no legitimate reason to continue bans on incest or polygamy.
That opinion was included in a legal decision in California in which judges created same-sex marriage.
State Supreme Court justice Marvin Baxter, writing a dissent, said: “The bans on incestuous and polygamous marriages are ancient and deeprooted, and, as the majority suggests, they are supported by strong considerations of social policy. … Our society abhors such relationships, and the notion that our laws could not forever prohibit them seems preposterous.
“Yet here, the majority overturns, in abrupt fashion, an initiative statute confirming the equally deeprooted assumption that marriage is a union of partners of the opposite sex. The majority does so by relying on its own assessment of contemporary community values, and by inserting in our Constitution an expanded definition of the right to marry that contravenes express statutory law.”
His warning?
“Who can say that, in 10, 15 or 20 years, an activist court might not rely on the majority’s analysis to conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified?”
The 6th Circuit said there is a logic behind traditional marriage.
“What we are left with is this: By creating a status (marriage) and by subsidizing it (e.g., with tax-filing privileges and deductions), the states created an incentive for two people who procreate together to stay together for purposes of rearing offspring. That does not convict the states of irrationality, only of awareness of the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended offspring. That explanation, still relevant today, suffices to allow the states to retain authority.”
Babione said the people of every state “should remain free to affirm marriage as the union of a man and a woman in their laws.”
“As the 6th Circuit rightly concluded, the Constitution does not demand that one irreversible view of marriage be judicially imposed on everyone,” he said. “The 6th Circuit’s decision is consistent with the U.S. Supreme Court’s acknowledgement in Windsor that marriage law is the business of the states.”
