A U.S. Supreme Court decision redefining marriage would “undermine” liberty and leave to the whim of the federal judiciary a multitude of valid and valuable state laws, according to a brief.
The high court justices will hear arguments April 28 in an appeal of a 6th Circuit ruling that states have the right to define marriage.
The friend-of-the-court brief filed on behalf of the state of Alabama, where the state Supreme Court rejected a federal judge’s attempt to impose same-sex marriage, warns legal manipulation would be needed to justify a change could have far-reaching effects.
The brief, filed by the Alliance Defending Freedom, argues that those who want the court to redefine marriage to legitimize same-sex duos are incorrectly arguing for the highest level of court review.
“But this case is about more than marriage. It is also about the proper role of the federal courts in scrutinizing state policy decisions. The presumption is that state laws are constitutional. And they should be subject to searching federal-court review only if they differentiate based on a suspect classification or impact a fundamental right,” the brief says.
Neither applies in this case, the brief explains.
“The Constitution’s guarantees of equal protection and due process allow no more searching judicial review than this: courts must verify that the challenged law is rationally related to a legitimate state interest. … Petitioners [who want orders for same-sex ‘marriage’] cannot overcome this deferential standard. They challenge an institution that has been accepted from time immemorial by diverse cultures.”
An order for changes could have far-reaching effects, the brief warns.
“If the traditional definition of marriage is not a rational basis for legislative action, it is hard to imagine what is. Put another way, if rational-basis review invalidates traditional marriage, it seems likely that few other laws would be safe from the federal courts.”
Such a determination “would enable federal courts, through mere disagreement with the wisdom or utility of state policy, to overturn scores of state laws that afford government benefits or impose government costs on some (but not all) citizens. That result would undermine federalism, liberty, and our nation’s democratic processes.”
The correct ruling is to affirm that states can define marriage, the brief argues. “The states have a legitimate interest in promoting ties of kinship between children and both of their biological parents. … Second, man-woman marriage laws are rationally related to this interest. In contrast, children raised in same-sex households are necessarily raised without one or both biological parents in the home. Thus, because redefining marriage to include same-sex couples would not further the states’ legitimate interest in connecting children to both of their biological parents, man-woman marriage laws plainly withstand rational-basis review.
“Adopting petitioners’ invitation to push rational-basis review far beyond its deferential parameters would require this court to ignore the democratic and liberty-protecting principles that from the basis of those constraints. Petitioners’ version of rational-basis review would threaten a host of unrelated state laws that afford benefits or impose costs on some (but not all) citizens. It would also jeopardize the liberty of Americans to choose their destiny through the ballot box instead of the courtroom.”
It’s just one of scores of briefs that have been filed in the case. The Supreme Court has a list of the submissions posted along with its timeline of the case.
ADF has highlighted a number of them.
ADF Senior Legal Counsel Jim Campbell noted the significance of the arguments.
“How we treat marriage has societal consequences. The wisest course, as these briefs demonstrate, is for the court to resist demands to prematurely end the national debate over the future of marriage,” he said.
One filing, from 100 marriage scholars, notes that a change in the standard across the U.S. would be expected to lead to nearly 600,000 children born to non-marital parenting situations and nearly 900,000 more abortions.
A coalition of 15 states argues that to resolve the argument over marriage “through federal judicial decree would demean the democratic process, marginalize the views of millions of Americans, and do incalculable damage to our civic life.”
Fifty-seven members of Congress said that the principles of individual liberty prevent the use of the Constitution to redefine marriage in all 50 states.
Six individuals who were “raised by a parent in a same-sex relationship” filed briefs about the hardships of being raised apart from one or both of their biological parents.
Wrote Heather Barwick and Katy Faust: “Regardless of how the court chooses to rule, we want the children of gay parents who come after us to know that they mattered. They were worth speaking up for … the same-sex-headed household involved great personal loss for children raised under them.”
At the Constitutional Law Prof Blog, Ruthann Robson has listed all of the approximately 140 briefs filed in the case.
They all address two questions: Does the 14th Amendment require a state to license a marriage between two people of the same sex? Does the 14th Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
The previous record for the number of briefs filed in a case was 96, when the Supreme Court struck down the federal Defense of Marriage Act. Some of the new arguments note that that case included a clear determination from the Supreme Court that marriage laws are the prerogative of the state, not the federal government.
Robson’s blog noted this case has attracted 76 briefs seeking to dissemble marriage, and 63 where groups or individuals want marriage affirmed.
Commentator John Zmirak wrote recently on the “Gay totalitarianism and the coming persecution of Christians.”
He noted the growing damning of Christians as “bigots” and “haters.”
“It’s stunning how quickly the demands of gay activists went from libertarian (‘Don’t arrest us for sodomy’) to totalitarian (‘Take part in our weddings or we’ll destroy your livelihoods’),” he wrote.
“Should we engage in large-scale, non-violent civil disobedience, as black Americans once did in the face of Jim Crow laws? We have the numbers to bring this country to a sudden screeching halt, if we can stand up to the media’s blows and spitting.”
WND reported only a week ago when longtime conservative leader Pat Buchanan urged Christians to fight the “LGBT fanatics” who are demanding they betray their faith, even if it means civil disobedience.
In an interview with WND, Buchanan, the author of “Suicide of a Superpower: Will America Survive to 2025?” and other bestsellers, spoke on the controversy over the Indiana Religious Freedom Restoration Act.
Buchanan forcefully condemned defeatism among social conservatives and rejected retreat or even compromise. Instead, the one-time presidential contender and Reagan White House aide urged Christians to put the laws of God above the laws of man.
“This battle can be won, but it cannot be won if we do not stand our ground and fight against this moral onslaught from the left,” he said. “The hill to stand on and fight on is the God-given natural right and the constitutional principle that people of faith may choose not to associate with those whose actions are abhorrent and whose lifestyle is insulting and offensive to that faith.”
Buchanan dismissed arguments that “gay”-rights activists are simply asking for political freedom or the same rights as any other citizen.
“The LGBT militants are not asking to be left alone,” he said. “They are demanding that we accept the morality of homosexuality and same-sex marriages, and manifest that acceptance, under pain of law and sanctions, in our daily lives.”
Buchanan added: “As the Romans demanded of the Christians, the LGBT fanatics want us to burn incense to their gods. The answer is no. If it comes to civil disobedience, so be it.”
WND also reported a team of prominent Christian leaders worked on a statement to inform the public – including justices on the U.S. Supreme Court who soon will hear arguments on the issue – that they will engage in civil disobedience rather than follow a ruling that establishes homosexual marriage in the United States.
Among those leading the charge are James Dobson of Family Talk Radio, Rick Scarborough of Vision America Action, Mat Staver of Liberty Counsel and James Robison of Life Today, whose new publication called the Stream reported on a telephone conference call discussing the issue.
Stream Executive Editor Jay Richards told WND there were about 20 other Christian leaders on the call. He said members of Congress have expressed an interest in the plan.
“We’re taking a very adamant stand,” he said. “If the court declares same-sex marriage to be on the same par as a civil right, that’s a bridge too far. We won’t obey. We’ll go to jail.”
Dobson, who publicly warned Obama earlier he would not submit to mandatory payments for abortion – said Christians must stand together against the clearly unbiblical same-sex marriage.
“We will be attacked from every direction,” Dobson said in the report in the Stream, “and critics will do all they can to weaken and embarrass us, but so what?”
Get James Dobson’s classic, “When God Doesn’t Make Sense,” from the WND Superstore.
“Are we going to sit on our reputations and go to our graves without having played a role? This is Roe v. Wade all over again. I am standing shoulder to shoulder with all who will stand up for God’s Word concerning marriage. We don’t know all of the steps that must be taken, but God will reveal His will. To the extent that I am able to influence anybody, I will do it with passion,” Dobson said.
WND, reporting earlier on the issue of civil disobedience, noted Staver said: “Immediately, when elevated to that level of a constitutionally protected category, [same-sex marriage] is given the same status as race. What you cannot legally do with respect to race, you will not be able to do legally with respect to same-sex unions and sexual immorality.
“Think of race in the context of religious expression or conscience expression and replace it with sexual immorality, transsexualism or so-called gender identity. For example, churches and other religious organizations are exempt from the religious discrimination provisions of federal, state or local nondiscrimination laws. But they are not exempted from the race provisions. So Catholics can hire Catholics, and Baptists can hire Baptists, but they cannot hire only ‘white’ Catholics or only ‘white’ Baptists. They would face significant penalties. You can’t have separate restrooms or drinking fountains for people of a different color. If a church did that they would be liable for a significant amount of damages because of discrimination on the basis of race.
“Same-sex marriage or laws including sexual orientation or gender identity as a non-discrimination category directly impact religious organizations and churches. If a man wants to use the women’s restroom and a church official told him he could not, then that act would be like telling people of color they cannot use the ‘white only’ restroom. You will also have the same issues with tax exemption over sexual preference as you have now over race,” he said.
