How Same-Sex Marriage Opponents Are Trying to Defend Their State Bans

It seems like hardly a day goes by these days without a federal decision in favor of equal marriage rights in the US.

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It seems like hardly a day goes by these days without a federal decision in favor of equal marriage rights in the U.S. Late on Thursday, Virginia became the latest state to see its same-sex marriage ban struck down in a federal court, and two cases in Oklahoma and Utah are awaiting their day before a federal appeals panel in April. But those opposed to equal marriage are hardly ready to give up, despite a pretty terrible post-Windsor record in the courts. So how do you defend gay marriage bans? Opponents still have a few ideas left.

In each case, the plaintiffs challenging those bans have argued that state bans on gay marriage deny them constitutional rights protected under the U.S. Constitution's equal protection and due process clauses. After the Supreme Court struck down the Defense of Marriage Act last summer, that argument became even clearer: legally-married same-sex couples now get equal marriage benefits at the federal level. States that deny same-sex couples the ability to get married are also denying those couples access to federal benefits.

Federal judges in Utah, Oklahoma, and and Virginia have all more or less accepted that argument in recent weeks while ruling on lawsuits that directly challenge voter-approved bans on gay marriage. In Kentucky and Ohio, federal judges have overturned portions of state bans on gay marriage in more limited lawsuits. And in New Jersey and New Mexico, state courts have ruled in favor of marriage equality faced with similar, post-Windsor, legal arguments.

This record is no doubt discouraging to those who want to keep same-sex marriage bans on the books. And some states — Virginia and Nevada, for instance — have given up on defending their bans in court. But others are mounting defenses. Putting aside the main conservative cultural argument to preserve these bans (essentially, that opposite sex marriage is "traditional" and therefore important to keep as the only valid form of marriage), here are the two big arguments floated in defense of same-sex marriage bans:

These bills reflect the will of the people in the state of ______, and the federal government needs to respect that.

In a statement shortly after the Virginia ruling, the National Organization for Marriage (which sends statements to reporters after every major court action on this issue) argued that the U.S. Supreme Court has given the states the ability to define marriage for themselves. "[T]he people of Virginia did just that in voting overwhelmingly to affirm marriage as the union of one man and woman," NOM argued, adding, "that decision should be respected by federal judges."

Sen. Ted Cruz of Texas and Rep. Mike Lee of Utah — both from states facing court challenges to their bans — introduced versions of a bill called the "State Marriage Defense Act" this week, which cites the Tenth Amendment divisions between federal and state powers. The argument here is essentially that the federal government has no business telling states how to define marriage, so federal policy pertaining to marriage rights and benefits should always defer to the states. In other words, the state's right to define and regulate marriage should trump questions about equal protection.

This argument should sound familiar, as the Tenth Amendment was also a big part of the defense used by Virginia to preserve its ban on interracial marriage. That 1960's case, Loving v. Virginia, ended up going to the U.S. Supreme Court, after Virginia's highest court ruled that the 10th Amendment placed marriage regulation strictly within state control. The U.S. Supreme Court unanimously rejected that argument, instead finding that the Fourteenth Amendment's equal protection clause. In its decision, the high court wrote that "the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." The Loving decision struck down all interracial marriage bans in the country.

Think of the children.

This is the line of thinking taken by Utah in its appeal of a federal court decision against its same-sex marriage laws. It relies on a few assumptions, most notably that marriage "is principally a child-centered institution," as Utah wrote in its brief to the court. The brief continues to argue that the constitutional question at stake is not whether same sex-couples have a right to marriage and the benefits that come with it. Instead, it's this:

The constitutional question is whether it is reasonable for Utah’s citizens to believe that a child benefits most from being raised by his or her biological mother and father in a permanent relationship, and that such relationships should therefore be encouraged through recognition as marriages.

This line or reasoning serves two purposes. First, it's meant to refute echoes of Loving v. Virginia, charges that the state acting in a bigoted manner by trying to discriminate against LGBT people or preserve heterosexual superiority. These are distasteful things to be accused of, so those defending the bans are trying to minimize the characterization that they're on the wrong side of history. And second, its supposed to move the discussion from marriage as a decision by two adults to marriage as an institution designed for procreation and raising children. Oklahoma used a similar argument to defend its ban, something a federal judge rejected in a recent decision: “same-sex couples are being subjected to a ‘naturally procreative’ requirement," U.S. District Judge Terence Kern wrote, "to which no other Oklahoma citizens are subjected, including the infertile, the elderly, and those who simply do not wish to ever procreate.”

One of the best summaries of the state of these defenses came from a limited federal decision in favor of marriage equality in Kentucky this week. On Wednesday, a federal judge ordered the state to recognize legally-married same-sex couples living there, who were presumably married in states where those marriages are legal. "Courts usually answer only the questions that come before it," U.S. District Court Judge John G. Heyburn wrote. He added, "Each of these small steps  has led to this place and this time... sometime in the next few years at least one other Supreme Court opinion will likely complete this judicial journey."

This article is from the archive of our partner The Wire.