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Saying they represent the voices of millions of Americans, a coalition of faith groups that includes the Mormon church called on the 10th Circuit Court of Appeals to uphold bans on same-sex marriage in Utah and Oklahoma because traditional marriage is "indispensable to social welfare and our republican form of government."
The Church of Jesus Christ of Latter-day Saints joined with the U.S. Conference of Catholic Bishops; the National Association of Evangelicals; The Ethics & Religious Liberty Commission of the Southern Baptist Convention; and the Lutheran Church-Missouri Synod in filing the brief. The faith organizations are represented by attorneys Alexander Dushku of Kirton McConkie in Salt Lake City and Anthony R. Picarello Jr., general counsel for the U.S. Conference of Catholic Bishops, based in Washington, D.C.
"Faith communities like ours are among the essential pillars of this nation's marriage culture," the groups said. While each church has differing beliefs, their teachings, rituals, traditions and ministries are aimed at upholding the "time-honored institution" that benefits children, families and society.
The faith groups said allegations that those who uphold traditional marriage are "irrational" or "bigoted" are "false and offensive" and should not be the basis for overturning the two states' laws.
Such comments are "intended to suppress rational dialogue and democratic conversation, to win by insult and intimidation rather than by reason, experience and fact," the groups said. "In truth, we support the husband-wife definition of marriage because we believe it is right and good for children, families, and society. Our respective faith traditions teach us that truth. But so do reason, long experience, and social fact."
Utah, which filed its opening brief on Feb. 3, is seeking to overturn the Dec. 20 decision by U.S. District Court Judge Robert J. Shelby that found the state's ban on same-sex marriage to be unconstitutional. The 10th Circuit is allowing amicus parties to jointly file briefs in appeal of a similar ruling from an Oklahoma district court judge.
Attorneys for three same-sex couples challenging Utah's marriage ban will file their opening brief on Feb. 25. Parties aligned with the plaintiffs will have one week to file amicus briefs. Utah's final response brief is due March 4. The 10th Circuit has set oral arguments in the Utah case for April 10 and in the Oklahoma case for April 17.
More than 20 individuals and groups have filed amicus briefs supporting the states' positions; many also filed briefs in other proceedings, including the Proposition 8 and Defense of Marriage Act cases heard by the U.S. Supreme Court last year. The faith coalition was among those who filed briefs at the Supreme Court.
While the LDS Church has been involved in same-sex marriage debates in California and Hawaii, it initially remained on the sidelines as the legal fight played out on its home turf. Asked why, a church spokesman said in a Dec. 6 email to The Salt Lake Tribune that the faith "does not typically file amicus briefs in district court."
But the stakes apparently changed dramatically with Shelby's ruling and an appeal that could eventually reach the Supreme Court.
The faith groups said they do not bear "ill will" toward same-sex couples, but are instead focused on "marriage-affirming religious beliefs that merge with both practice experience and sociological fact."
The religious support for traditional marriage has nothing to do with homosexuality, the groups said. The Catholic Church, for example, considers marriage a "permanent, faithful, and fruitful convenant between a man and a woman that is indispensable to the common good," the groups state in their brief.
Evangelicals and Mormons alike view marriage as biblically based, ordained of God and as a means of carrying out God's will concerning men, women and children.
"Indeed, it is only the recent same-sex marriage movement that has made it more common for religious organizations to include discussions of homosexuality in their teachings on marriage," they said.
The filing includes arguments that mirror Utah's about procreation, the interest of the state in promoting responsible sexual conduct, and the ideal environment for child-rearing.
"A gender-neutral definition unavoidably changes the message and function of marriage by altering it to serve the interests of adults," they said, and would undermine faith organization's vital role in upholding a "vibrant marriage culture."
The groups cited religion as a "key motivating factor for the most formative political movements" in the nation's history, from the country's founding to abolition of slavery, women's suffrage, and civil rights." No principle of constitutional law prevents the electorate or state legislators from adopting laws that reflect moral judgments about "what is best for society," they added.
"From criminal laws, to business and labor regulations, environmental legislation, military spending, and universal health care — the law and public policy are constantly based on notions of morality," the faith groups said. "More fundamentally, declaring a law void because it adheres to traditional moral beliefs is contrary to the fundamental constitutional right of religious citizens to participate fully in the process of self-government as believers."
They also agree with the state that the Supreme Court decision in United States v. Windsor reiterated that "state laws defining marriage are the rule."
In its brief, The Sutherland Institute, a conservative public policy think tank in Salt Lake City, said "marriage and family are pre-political and not mere instruments of state policy" and are thus "fundamental to a system of ordered liberty." It described that system as one in which "social peace" and "personal liberty" are "harmonized in accordance with constitutional principles of limited government."
Marriage, the institute said, is crucial in forming the initial context for shaping individual character within this system and "provides powerful social benefits that cannot be provided through a government program."
The Sutherland Institute said Shelby mischaracterized the goal of Amendment 3 as imposing inequality on same-sex couples, "as if legislators had gathered in a brainstorming session to determine how to harm the chances of same-sex couples, and came up with a thing called marriage to which these couples could be intentionally excluded."
"The court's understanding of marriage suggests that it is a government program with social engineering ends," such as "incentivizing" childbirth or increasing statistics. The Sutherland Institute said such a view of marriage is not aligned with a "system of ordered liberty."
"While state laws may not deny the dignity of individuals, the Constitution does not require states affirmatively to try to bestow dignity on individuals, if indeed, it could do so," the institute said.
Twelve states filed briefs, echoing and in many instances replicating language used in Utah's brief as well as one filed in a Nevada case pending before the 9th Circuit Court of Appeals. The state of Michigan filed its own brief; eleven other states — Indiana, Alabama, Alaska, Arizona, Colorado, Idaho, Indiana, Montana, Nebraska, Oklahoma and South Carolina — filed jointly.
They argue that neither Congress nor the courts has authority to dictate what the states' must adopt as marriage policy, invoking a historical, traditional, exclusive definition. Shelby's ruling defines marriage "as nothing more than social validation of personal bonds of affection" which leads "not to the courageous elimination of irrational, invidious treatment, but instead to the tragic deconstruction of civil marriage and its subsequent reconstruction as a glorification of the adult self."
As in Utah's brief, the states raise a concern about polygamy, which the state of Michigan describes as a "competing understanding of family life" found in more than 40 countries. They say once the "natural limits" of defining marriage to one man and one woman are gone, "any grouping of adults would have an equal claim to marriage."
The states also reject any discriminatory intent behind same-gender marriage bans, saying it is implausible that the "traditional definition of marriage was invested as a way to discriminate against homosexuals or to maintain the 'superiority' of heterosexuals vis-a-vis homosexuals."
Rather, civil recognition of marriage between one man and one woman is predicated on the procreative ability of opposite-sex couples and aimed at encouraging them to stay together to rear the children they conceive.
The states also say childless opposite-sex couples reinforce this norm by, as the state of Michigan explained, establishing an example for other couples of the opposite sex who will have children."
"The law serves the goal of establishing ideal standards, encouraging the public to align themselves to these archetypes," Michigan said in its brief.
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