Rulings against 'gay marriage' could change legal landscape

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NASHVILLE, Tenn. — A string of recent defeats for "gay marriage" supporters has set a body of precedent that could make it tougher for future courts to rule differently, conservative attorneys say.

In July alone, conservatives won in seven different states, including two monumental cases — New York and Washington — where state supreme courts handed down rulings against "gay marriage." And in Nebraska, a federal appeals court panel reinstated that state's marriage amendment, one year after it had been struck down as unconstitutional.

"It has created a body of precedent. It gets harder with every decision that comes down for the next court to reject that [state] limitation and to say, 'That's not what marriage is really about,'" Chris Stovall, an attorney with the Alliance Defense Fund, told Baptist Press. ADF was involved in all seven cases in July.

Although none of the state court rulings are binding on other states, they nonetheless can have an impact when justices on other courts research for and write opinions. For instance, the Washington court's majority opinion cited the New York court's opinion at least three times, even though the cases were handed down only 20 days apart.

Within the last two decades five state high courts — Massachusetts, Vermont, Hawaii, New York and Washington — have ruled on the constitutionality of marriage statutes. Massachusetts is the only one so far to legalize "gay marriage."

"Only one court of last resort has gone the wrong way, and that's Massachusetts, and it was by a margin of one vote [in a 4-3 decision]. And that one-vote margin has affected all of us," Mat Staver, president of the conservative legal group Liberty Counsel, told BP. Liberty Counsel was involved in the New York and Nebraska cases.

In 1999, Vermont's high court struck down that state's marriage statute, although it gave the legislature the option of legalizing same-sex civil unions, which the legislature did. Civil unions grant same-sex couples the legal benefits of marriage without using the word "marriage."

In 1993, Hawaii's high court sent a "gay marriage" case back down to a lower court, but in doing so ruled that the state must show how its traditional marriage laws further a "compelling state interest." A few years later, with the high court seemingly on the verge of redefining marriage, Hawaii voters passed a marriage amendment giving the legislature the power to protect the natural definition of marriage.

In addition, within the last three years mid-level courts in Arizona and Indiana upheld traditional marriage laws.

But the rulings in New York, Washington and Nebraska could change the legal landscape for the near future, conservative attorneys say. One reason is that, compared to other legal issues, there have been few decisions from appellate courts on "gay marriage." Another reason is that all three decisions affirmed the idea that procreation and child-rearing can be used as a legitimate basis for protecting the natural definition of marriage.

"Every one of those decisions — Washington, New York and also the [Nebraska ruling out of the] Eighth Circuit — ... all adopted the notion that it is a legitimate purpose for the marriage laws to steer human procreative activity into stable long-term relationships so that, as often as possible, children will be raised by their mother and their father together," ADF's Stovall told Baptist Press. "That's what we've been stressing all along. That is the reason why states have marriage laws."

For instance:

• Washington Supreme Court Justice Barbara A. Madsen, writing for the majority, said that the state legislature "was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children's biological parents."

• New York Court of Appeals Judge Robert S. Smith, who voted in the majority, wrote that it would be OK if legislators decided that "it is better ... for children to grow up with both a mother and a father.... Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like."

• U.S. Court of Appeals Judge James Loken, who serves on the Eighth Circuit, wrote that "whatever our personal views regarding this political and sociological debate," the court "cannot conclude" that Nebraska's justification for its marriage amendment "lacks a rational relationship to legitimate state interests." The state had argued in court that the government has an interest in "steering procreation into marriage."

The New York and Washington courts also ruled that issues such as "gay marriage" should be settled in the legislature, and not in state courts. In her ruling, Washington Justice Madsen said the court had a "limited role."

"The cases are coming down routinely saying that the proper role of the judge is to adjudicate the law, not to legislate," Liberty Counsel's Staver told BP. "There's no question [gay marriage supporters] were expecting victories in both of those states. They felt that those states, if any states, could be picked off and would have strategic impact for the rest of the country — New York so large and influential and Washington having no residency requirement on marriage."

Although the Nebraska ruling is being appealed, the New York and Washington cases cannot be. All three rulings, ADF's Stovall said, underscored the argument that marriage laws are tied to child-rearing — and not simply love between two people, as "gay marriage" supporters argue.

"The state's interest in licensing and regulating marriage — through benefits — is not simply because it's a good thing for people to be in loving, committed relationships," Stovall said. "It's because there is a need to make sure that men and women, when they produce children, will raise them together in stable households. The focus is on children and on families, and [the family] being the basic building block of stable societies."

All eyes now focus on New Jersey's Supreme Court, which heard oral arguments in a "gay marriage" case in February and could hand down its ruling any day. It is the same court that in 1999 ruled the Boy Scouts could not prevent homosexuals from becoming troop leaders — a decision that was reversed by the U.S. Supreme Court.

"[T]hey [gay marriage supporters] still have their fingers crossed on New Jersey, which is thought to be an even more liberal Supreme Court than New York and possibly more so than Washington," Stovall said.

The major homosexual activist organizations favor an incremental strategy on "gay marriage," whereby they rack up victories on the state level before taking their case national. For instance, they oppose any federal lawsuits being filed against the federal Defense of Marriage Act, believing the timing isn't right for such a suit and the makeup of the Supreme Court isn't friendly to their cause. DOMA prevents the federal government from recognizing "gay marriage" and allows states to do the same.

In addition to New Jersey, state courts in California, Connecticut, Iowa and Maryland also are entertaining "gay marriage" cases, although all the cases remain in lower courts. There also is a federal case in Oklahoma, but the major homosexual activist groups aren't on board.

"They're not retreating," Staver said. "They're not going to stop their legal challenges. But they [have] had some devastating defeats."