February 8, 2013
By Scottie Thomaston
Several states have signed on to amicus curiae briefs in Windsor and Perry, the DOMA and Prop 8 cases. Previously, fifteen states had asked the Court to review (and affirm) the constitutionality of DOMA.
In United States v. Windsor, challenging Section 3 of DOMA, the states that signed on are: Alabama, Alaska, Arizona, Georgia, Idaho, Indiana, Kansas, Michigan, Montana, North Dakota, Oklahoma, South Carolina, Texas, Utah, Virginia, West Virginia, and Wisconsin.
In Hollingsworth v. Perry, challenging California’s Proposition 8, the list is: Alabama, Alaska, Arizona, Colorado, Georgia, Idaho, Indiana, Kansas, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia, West Virginia, and Wisconsin.
The briefs have some similarities: both make the “procreation” argument that opposite-sex marriage exists to promote responsible procreation and that is a rational basis for the laws in question. Both briefs suggest that rational basis – and not any kind of heightened judicial scrutiny – should be applied. Both stress the importance of “traditional marriage.” Both suggest bad things will follow from recognition of same-sex marriage. As the Windsor brief puts it:
Finally, divining a constitutional mandate for same-sex marriages would cause irredeemable harm to the Nation as a deliberate, democratic society. As has been shown by the entrenched discord inflicted by Roe v. Wade, judicial decisions that remove issues from the political branches of government can hinder, instead of facilitate, national consensus on contentious topics. Whether to reconstitute civil marriage so that its definition includes same-sex couples is currently the subject of robust nationwide debate. Arguments in support of scrapping the meaning of marriage that has existed for all time should be allowed to find fertile ground, or not, as part of the democratic process, not as untouchable constitutional law.
The Perry brief goes even further, though, and suggests there’s no reason to recognize same-sex marriage at all:
A constitutional theory that requires recognition of same-sex couples in contravention of this legal culture, not to mention centuries of human experience, must supply a coherent rationale, not simply attack traditional marriage as antiquated or ill-considered.
A central argument for recognizing same-sex marriages arises from a fashionable insistence that society and the “modern family” are not what they used to be.
But none of these social changes—whether one views them as good, bad, or inconsequential— justifies marriage for same-sex couples.
And parents who have to procreate using artificial insemination are not the same as others, and have not “procreated” in the correct sense of the word, according to the states:
The primary rationale for traditional marriage is responsible procreation, not responsible parenting more generally. And when two people become parents by way of artificial insemination, surrogacy or adoption, they have not procreated—at least not with one another.
They write that gay couples don’t need the burden of government regulation because they tend to plan procreative activities and raise families responsibly:
Indeed, to the extent same-sex couples must take intentional, non-sexual action to become joint parents, such conduct vitiates the need for government involvement. states may assume that couples who by definition can acquire parental rights only through intentional conduct need no further societal approbation or regulation—they are already focused on the consequences of their actions.
For its part, the Windsor brief makes some additional arguments: first, they argue that striking down Section 3 of DOMA will endanger state marriage laws. Second, and related, they argue that deciding the issue now will “poison the political well.” The argument goes:
Although this case targets only Congress’s definition of marriage for purposes of federal law, invalidation of that definition on equal protection grounds would imply collateral invalidity of identical state definitions. The Court should not cut short the robust democratic debates occurring across the country by deeming same-sex marriage to be a matter of federal constitutional law. Keeping decisions about fundamental social issues within the ambit of state political processes helps inculcate democratic habits and values; the greater availability of political resolution encourages citizen participation, fosters political accountability, and enhances acceptance of the outcomes.
They cite Roe v. Wade for the dangers of allowing gay and lesbian couples to marry:
Preemptively short-circuiting the democratic process by announcing only one permissible policy choice by any government under the Constitution destroys these benefits and should not occur unless the Constitution clearly mandates the legitimacy of only one outcome. The Nation’s experience in the wake of Roe v. Wade bears this out.
So these states are asking the Court to uphold Section 3 of DOMA and California’s Prop 8.
h/t Kathleen for these filings