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15 States Ask the Supreme Court to Review DOMA

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The state of Indiana filed an amicus brief with 14 other states in the Gill case, which challenges Section 3 of the Defense of Marriage Act. The case has reached the Supreme Court through petitions for certiorari by the Bipartisan Legal Advisory Group (BLAG), which is defending the law on behalf of House Republicans after the Justice Department decided it would no longer defend Section 3, and through a petition by the Justice Department itself. The state of Massachusetts, whose case is consolidate with Gill at the appellate level, has also filed a petition for certiorari

Indiana, Alabama, Alaska, Arizona, Colorado, Georgia, Idaho, Kansas, Michigan, Nebraska, Oklahoma, South Carolina, South Dakota, Texas, and Virginia signed onto the brief, which is largely based on the argument that "procreation" is a rational basis for the Act and for state marriage laws, as well. Arguing that the Supreme Court has held that "[t]he same equal protection principles have generally applied to state and federal laws," the attorneys write that "if the federal government has no legitimate reason to define for the purpose of federal programs, considerations of tradition or gradualism are unlikely to save state marriage laws -- especially those that differentiate between opposite-sex and same-sex unions in name only." In their view, a decision nullifying the congressional definition of marriage would necessarily use logic that would lead to the evisceration of state marriage definitions.

Referring to the First Circuit's holding that Section 3 of DOMA has no demonstrated link to its purported goals of strengthening heterosexual marriage as a "startling conclusion," the brief says the First Circuit "answered the wrong questions" to reach its decision, because in the states' view, "the panel below simply needed to ask why Congress sought to incentivize traditional marriages and whether that rationale extends to same-sex couples." In their view, the case turns on whether there are important differences between same-sex and opposite-sex couples, and they offer the ability to procreate as one important distinction. To the states the definition of marriage is "based on an understanding that civil marriage recognition arises from the need to encourage biological parents to remain together for the sake of their children." The 15 states argue that there is no government interest in promoting marriage just for the sake of it, without reference to procreative purposes. And they suggest that because same-sex couples can't procreate, it's reasonable to leave the distinction of being "married" solely to opposite-sex couples.

Marriage creates the social norm "that potentially procreative sexual activity should occur in a long-term, cohabitative relationship." Quoting Maggie Gallagher, the brief suggests that "society" channels people into opposite-sex marriages for procreation, and that Section 3 of the federal Defense of Marriage Act furthers that channeling: "'Through civil recognition of marriage, society channels sexual desires capable of producing children into stable unions that will raise those children in the circumstances that have proven optimal.' Maggie Gallagher, What is Marriage For? The Public Purposes of Marriage Law, 62 La. L. Rev. 773, 781-82 (2002). '[M]arriage's vital purpose in our societies is not to mandate man/woman procreation but to ameliorate its consequences.' Monte Neil Stewart, Judicial Redefinition of Marriage, 21 Can.J. Fam. L. 11, 47 (2004)."

They write that same-sex relationships are still recognized by arrangements that are not called marriage, that are just "alternatives" to the "model": "This ideal does not disparage the suitability of alternative arrangements where non-biological parents have legal responsibility for children. But these relationships are exactly that -- alternatives to the model." The states also write that courts have long said that procreation is a rational basis for traditional marriage.

The states argue that Baker v. Nelson controls the outcome of DOMA litigation. In Baker the Supreme Court dismissed, "for want of a substantial federal question," a case involving a gay couple in Minnesota who sought a marriage license but were denied. Because under the (now-repealed) law that required mandatory review of the Minnesota Supreme Court's Baker decision, the Supreme Court's dismissal is a decision "on the merits" (at least regarding the precise issues at stake in Baker), the states argue that the question of restricting the definition of marriage to opposite-sex couples was already reached and decided on.

The states want the Court to grant the petition and intervene in the dispute, because "[t]he failure of the decision below to [articulate a coherent rationale for government recognition of both same-sex and opposite-sex legal marriages] -- and indeed of any of the courts invalidating traditional marriage and its benefits to do so -- while abnegating one of the most fundamental and enduring civil institutions in American life, justifies this Court's intervention."

Scottie Thomaston is a contributor at Courage Campaign Institute's Prop8TrialTracker.com, where this piece originally appeared.