This term, the United States Supreme Court will address the issue of whether the Fourteenth Amendment requires a state to license a marriage between two people of the same sex. In other words, the Court will decide whether the Constitution requires so-called “same-sex marriage.”
Given the extreme importance of this issue, the American Freedom Law Center filed a “friend of the court” brief yesterday, urging the Court to uphold traditional marriage as between one man and one woman and to affirm the right of the states to decide this important public policy issue.
Before the Court is the constitutionality of the Michigan Marriage Amendment, which states as follows: “To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.”
As AFLC argued in its brief:
Defining marriage as a matter of law is the prerogative of the states and not the federal government, including the federal courts. Most important, restricting marriage to one man and one woman promotes legitimate state (and societal) interests. Therefore, this Court should affirm the decision of the U.S. Court of Appeals for the Sixth Circuit, which upheld the right of the people to define marriage for purposes of state law.
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Indeed, there is a rational basis and a substantial (if not compelling) state interest in limiting marriage to unions between one man and one woman. And one need look no further than the laws of nature to find it. The complementarity of the sexes reiterates a truth that is evident to right reason and recognized as such by all the major cultures of the world. Marriage is not just any relationship between human beings. It has its own nature, essential properties, and purpose. No ideology or political agenda can erase from the human spirit the certainty that marriage exists solely between a man and a woman, who by mutual personal gift, proper and exclusive to themselves, tend toward the communion of their persons. In this way, they mutually perfect each other in order to cooperate in the procreation and upbringing of new human lives.
While social scientists, certain activists and lawyers, and even federal judges appear willing to upset this balance of nature and in the process deny the very essence of our created beings as man and woman, they do so at the peril of society and the common good.
And to be clear, the state is not preventing anyone from forming a same-sex relationship, living with a same-sex partner, or even engaging in perverse sexual acts with a person of the same sex. See, e.g., Lawrence v. Texas, 539 U.S. 558, 563 (2003) (striking down on due process grounds a Texas sodomy statute which made it a misdemeanor for a person to “engage in deviate sexual intercourse with another individual of the same sex” and thus reversing the convictions of two men who were observed by police officers engaging in anal sexual intercourse). People remain “free” to engage in all sorts of sexually deviant behavior. That “privacy” interest is not at issue. See generally id.
What the state (through its people) is not going to do, however, is sanction and thus validate that same-sex relationship as a “marriage” as a matter of law. Nor should it be forced to do so by a federal court, any more than it should be forced to sanction as valid incestuous relationships, relationships between adults and minors, or bigamous relationships, among others.
As AFLC warned:
If the Court is going to disregard the natural law and force a state to sanction same-sex relationships there is no principled way to limit that holding. Lawrence, 539 U.S. at 590 (Scalia, J., dissenting) (observing that “the Court makes no effort to cabin the scope of its decision to exclude” laws prohibiting, for example, bigamy, adult incest, or bestiality).
AFLC summarized its argument as follows:
Michigan has a rational basis for defining marriage as a relationship between one man and one woman, and that basis is biology. The awareness of the biological reality and self-evident truth that couples of the same sex do not have children in the same way as couples of opposite sexes satisfies rational basis review, and, in fact, satisfies a heightened level of scrutiny under the Fourteenth Amendment. Indeed, it is without doubt a proper exercise of Michigan’s sovereign authority within our federal system to resolve this public policy issue by preserving the longstanding and traditional definition of marriage as a matter of state law. Therefore, Michigan is not required to license a marriage between two people of the same sex, and it would improper for this Court to conclude otherwise.