Supreme Court urged to support gay marriage limits

WASHINGTON Tue Jan 22, 2013 7:40pm EST

Marriage equality supporter Gus Thompson holds gay pride and American flags at a demonstration outside the appeals hearing on California?s Proposition 8 at the 9th District Court of Appeals in San Francisco December 6, 2010. REUTERS/Stephen Lam

Marriage equality supporter Gus Thompson holds gay pride and American flags at a demonstration outside the appeals hearing on California?s Proposition 8 at the 9th District Court of Appeals in San Francisco December 6, 2010.

Credit: Reuters/Stephen Lam

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WASHINGTON (Reuters) - The Supreme Court was urged on Tuesday to uphold the constitutionality of two laws that define marriage as the union of a man and a woman, as it prepares to hear arguments in the historic same-sex marriage cases two months from now.

Supporters of the 2008 California prohibition on same-sex marriage known as Proposition 8 told the court that defining marriage should be left to voters rather than judges, and that the ban did not dishonor gays and lesbians.

"That same-sex relationships are not recognized as marriages does not reflect a public judgment that individuals in such relationships are 'inferior' or 'of lesser worth as a class,'" the brief said, "but simply the fact that such relationships do not implicate society's interest in responsible procreation in the same way that opposite-sex relationships do."

In a separate filing, the top three Republican members of the House of Representatives - Speaker John Boehner, Majority Leader Eric Cantor and Majority Whip Kevin McCarthy - urged the court to uphold Section 3 of a 1996 federal law, the Defense of Marriage Act, that has the effect of denying same-sex couples a variety of federal benefits that heterosexual couples receive.

"Judicially constitutionalizing the issue of same-sex marriage is unwarranted as a matter of sound social and political policy while the American people are so actively engaged in working through this issue for themselves," their brief said.

The Supreme Court will on March 26-27 hear arguments on the California and federal laws, in two of the most anticipated cases of its current term. Nine U.S. states have legalized same-sex marriage.

Opponents of both provisions are expected to file their briefs next month. The Obama administration has stopped defending Section 3.


In the California case, Hollingsworth v. Perry, the 9th U.S. Circuit Court of Appeals had last February voided Proposition 8 but on narrow grounds, saying the state could not take away a right to same-sex marriage that it had previously allowed.

The law was allowed to remain in effect during the appeals process, which gives the Supreme Court a chance to accept or reject a constitutional right to same-sex marriage, or perhaps issue a narrower ruling affecting only California.

In their brief, supporters of Proposition 8 also said they are legally entitled to defend the ban "as agents of the people" because state officials including Governor Jerry Brown refused.

They raised this argument after the Supreme Court asked them to explain why they had "standing" to sue. If the court finds they do not, it could leave the 9th Circuit ruling intact, which could result in same-sex marriage being legalized in the state.

The New York case, U.S. v. Windsor, seeks to invalidate Section 3 of the Defense of Marriage Act, which defines marriage as between only a man and a woman for the purpose of federal benefits such as Social Security survivor payments and the right to file joint federal tax returns.

In October, the 2nd U.S. Circuit Court of Appeals in New York struck down Section 3, joining a May 2012 ruling by a federal appeals court in Boston.

Charles Cooper, a former lawyer in the U.S. Department of Justice under President Ronald Reagan, represents Proposition 8 supporters.

Paul Clement, a solicitor general under President George W. Bush, is representing the House Republican lawmakers, whose brief identifies them as the Bipartisan Legal Advisory Group of the U.S. House of Representatives.

The two Democratic members of that group, Minority Leader Nancy Pelosi and Minority Whip Steny Hoyer, do not support their position taken on Section 3.

Equality is also a theme of two other major Supreme Court cases this term: a challenge to affirmative action in admissions at the University of Texas, and whether a key provision of the 1965 Voting Rights Act should stay on the books.

The same-sex marriage cases are Hollingsworth v. Perry, U.S. Supreme Court, No. 12-144; and U.S. v. Windsor, U.S. Supreme Court, No. 12-307.

(Editing by Howard Goller and Lisa Shumaker)

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Comments (5)
ldfrmc wrote:
Cooper’s brief: “The age-old definition of marriage distinguishes between relationships of a man and a woman and all other types of relationships, including same-sex relationships. This distinction is rooted in a basic biological fact that goes to the heart of the state’s interest in regulating marriage: the unique capacity of intimate relationships between men and women to create new life.”

Change “age-old” to “old-age.” What distinction can the state draw, what interests does the state have, when an elderly straight couple marry? It is no different than an elderly gay couple.

So Cooper is arguing for the state to say: Young, straight? You can marry. Young, gay? You cannot. Old, straight or gay, we don’t care.

Mr Cooper, also, in the brief: “That definition has prevailed for all but 142 days of California’s 162 year history”

Sorry, Mr. Cooper. California did not put into any law a gender requirement, or distinction for marriage, until July 1976 – after gay couples asked to get married.

I can’t believe this clown is going to represent anyone before the Supreme Court.

Jan 22, 2013 8:17pm EST  --  Report as abuse
citizen033 wrote:
This won’t be a popular view, I suppose.

I don’t think it makes sense to call the union of two identical parts a marriage even in any figurative or literal sense. The homosexual agenda seems to want this so it can appear mainstream. But the fact remains that homosexuals are a very small (though vocal) minority.

That said, people do have a right to choose who they love, and who they want on their health care policy, or making next of kin decisions, and so forth. And I also think our tax code has a ton of problems, perhaps the main one is the sheer complexity, and the marriage benefit (which I receive) is one element of that.

I think expanding the types/parameters of civil union contracts is in order. Two strait bachelors should be able to contract as net of kin even if they have no sexual interest in each other.

Right now, homosexuals decry hetrosexism and demand marriage as a sign of equality. But the very fabric of our individualistic society cannot let that be an end to the matter—what of three or four or five people who wish to become a unit, a family? Are they to be married to each other? It is semantically preposterous to call it marriage, just like it is in the case of “gay marriage.” But it should be legal, and government regulations (and taxations) should not be implemented to direct and control the peoples’ behavior in such matters.

So, I hope the supreme court upholds marriage in its natural, common sense. But I also hope they issue some direction on better securing the rights of the homosexual minority.

Jan 22, 2013 10:40pm EST  --  Report as abuse
citizen033 wrote:
Oh, and in response to ldfrmc’s comment about the definition of marriage in California history, I’d like to add that the timing of California’s addition (1976) of gender specifics to its law is no proof of what definition prevailed. It in fact works against ldfrms’s position: no gender was specified because man-woman was indeed assumed as the prevailing definition.

Another example on the prevalence of this definition is to be had between Merriam Webster’s collegiate dictionary in the 10th (1993) and 11th (2000 ?) editions. It was not until the 11th edition that Websters expanded its marriage definition to include “same-sex marriage”.

This would seem to be a good indicator that at least until after 1993 the prevailing definition of marriage was of a relationship between a man and a woman.

Jan 22, 2013 10:51pm EST  --  Report as abuse
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