WASHINGTON — Three states have filed appeals to the U.S. Supreme Court in defense of their constitutional amendment enshrining marriage as being between a man and a woman, in light of lower court rulings which have struck down such same-sex ‘marriage’ bans as violating the federal Constitution.
The attorney generals in Utah and Virginia submitted their appeal on Tuesday and Friday, respectively, with a Christian legal organization filing on behalf of an Oklahoma county clerk on Wednesday.
The briefs submitted to the nine-judge panel largely express concern that amendments approved by voters can be so easily overturned by the courts.
“The 10th Circuit … negated the exercise of this fundamental right (of voting) by more than 1 million Oklahomans and millions of voters in other states,” Alliance Defending Freedom (ADF) wrote on behalf of Tulsa County Clerk Sally Howe. “Invalidating the people’s voice on an issue as profound as the definition of marriage presents an important question that warrants this court’s review.”
“It comes down to this: Thousands of couples are unconstitutionally being denied the right to marry, or millions of voters are being disenfranchised of their vote to define marriage,” Utah Attorney General Sean Reyes (R) wrote to the court.
As previously reported, the 10th Circuit Court of Appeals had struck down Oklahoma’s marriage amendment last month, which had been approved by 76 percent of voters during the November 2004 election.
“Oklahoma’s ban on same-sex marriage sweeps too broadly in that it denies a fundamental right to all same-sex couples who seek to marry or to have their marriages recognized regardless of their child-rearing ambitions,” the majority opinion asserted. “As with opposite-sex couples, members of same-sex couples have a constitutional right to choose against procreation.”
But Justice Paul Kelly, nominated by then-President George H.W. Bush, disagreed with his colleagues and declared that the court had no right to redefine the sacred institution of marriage.
“Simply put, none of the Supreme Court cases suggest a definition of marriage so at odds with historical understanding,” he wrote in his dissent. “Removing gender complementarity from the historical definition of marriage is simply contrary to the careful analysis prescribed by the Supreme Court when it comes to substantive due process.”
Utah’s appeal stems from a ruling issued in December of last year, when U.S. District Judge Robert J. Shelby, nominated by Barack Obama, struck down the state’s marriage amendment as a violation of the 14th Amendment. Utah’s amendment banning same-sex “marriage” was likewise passed in 2004 during the November election with 66 percent of the vote.
Gov. Gary Hebert had vowed to defend the law following the ruling, which was also upheld by the 10th Circuit Court of Appeals
“I am very disappointed an activist federal judge is attempting to override the will of the people of Utah,” he wrote. “I am working with my legal counsel and the acting attorney general to determine the best course to defend traditional marriage within the borders of Utah.”
Virginia Attorney General Mark Herring (D), who supports same-sex “marriage,” had originally refused to defend the Commonwealth’s marriage amendment, but has now agreed to appeal to the Supreme Court. Virginia’s ban was struck down in February in federal district court. The 4th Circuit Court of Appeals upheld the ruling last month.
“I believe the district and appeals courts ruled correctly in striking down Virginia’s discriminatory marriage ban, but it has long been clear that the Supreme Court will likely have the final word,” Herring wrote in a statement this week. “I want that decision to come as soon as possible and I want the voices of Virginians to be heard. This case has moved forward at an incredibly swift pace, and I look forward to a final resolution that affirms the fundamental right of all Virginians to marry.”
Many states and colonies passed laws criminalizing homosexual behavior even before the founding of America. William Penn, the founder of the Commonwealth of Pennsylvania, wrote in The Great Law in 1682, “And be it further enacted by the authority aforesaid that if any person shall be legally convicted of the unnatural sin of sodomy or joining with beasts such persons shall be whipped and forfeit one third part of his or her estate and work six months in the house of correction at hard labour, and for the second offense imprisonment as aforesaid during life.”