Attorney Generals in 13 states last week signed on to an amicus brief calling for an appeals court to overturn this summer’s ruling that invalidated California’s ban on same-sex marriage. Among the signers was Pennsylvania Attorney General Tom Corbett, the Republican nominee for governor.
The brief was filed with the U.S. Court of Appeals for the 9th Circuit Sept. 24 on behalf of Dennis Hollingsworth, a California state senator who is serving as a defendant-intervenor in the case, as the state’s governor and attorney general have declined to defend Proposition 8, the voter-approved referendum passed in 2008.
Corbett did not return repeated calls for comment.
The attorney general’s gubernatorial campaign website states: “Tom Corbett supports the Pennsylvania Marriage Amendment Act, which defines marriage as that between a man and a woman.” Pennsylvania currently has a Defense of Marriage Act in place, which limits the definition of marriage in state law, but attempts to amend the state constitution, like California’s Prop. 8, have been unsuccessful.
Joining Pennsylvania on the brief were Indiana, Virginia, Louisiana, Michigan, Alabama, Alaska, Florida, Idaho, Nebraska, South Carolina, Utah and Wyoming. Indiana Attorney General Thomas M. Fisher was the primary author of the document.
The brief describes that the states “have an interest in protecting the ability of all states to define marriage pursuant to political debate and action through the democratic process — whether by legislative enactment or citizen referendum.”
District Court Judge Vaughn Walker ruled in August that Prop. 8 violates same-sex couples’ constitutional rights to due process and equal protection, but the attorney generals argued that “the court not only misread the Constitution, it exceeded its judicial authority,” asserting that a federal court should not be involved in marriage laws, which typically have been decided state by state.
On legal grounds, the brief said the court should be compelled to overturn Vaughn’s ruling based on the outcome of Baker v. Nelson, in which the Minnesota Supreme Court found that limiting marriage to heterosexual couples did not amount to a Constitutional violation. The U.S. Supreme Court later refused to hear the appeal.
The latest filing contends that same-sex marriage is not rooted in the nation’s history and tradition and should not be considered a “fundamental liberty interest” protected by the due-process clause, and also asserted that legal precedent has not held LGBT people as a “suspect class” deserving of heightened scrutiny, a stricter form of judicial review applied to certain discrimination cases.
The attorney generals also listed the societal benefits they saw that accompany “traditional” opposite-sex marriage, namely procreation.
“Marriage was not born of animus against homosexuals but is predicated instead on the positive, important and concrete societal interests in the procreative nature of opposite-sex relationships,” they wrote. “Only opposite-sex couples can naturally procreate, and the responsibility begetting and rearing of new generations is of fundamental import to civil society. In short, traditional marriage protects civil society by encouraging couples to remain together to rear the children they conceive. It creates a norm where sexual activity that can beget children should occur in a long-term, cohabitative relationship.”
However, the brief does note that the concept of same-sex parents is a relatively new idea and that “if over time society concludes that the children of same-sex couples would do better if some incentive existed for such couples to remain together, then states can address that need.”
Jen Colletta can be reached at [email protected].