March 31, 2015
LEXINGTON, KY—Stan Cave, attorney for The Family Foundation, which successfully pressed for the passage of Kentucky Marriage Protection Amendment in 2004, filed an amicus curiae ("friend of the court") brief in support of the traditional marriage amendment with the Supreme Court of the United States. The law was overturned by a lower federal court last year, only to be reinstated in the 6th Circuit Court of Appeals in November, along with several other state laws which had also been struck down. Kentucky's law is now before the U.S. Supreme Court.
In his brief, Cave argues that not only have courts always recognized the right of states to define marriage, but that it is perfectly rational for a state to have policies that give incentives for as many children as possible to grow up in families with a biological mother and father, since studies confirm that this environment is the best place for children to be raised.
"Gay marriage not only redefines marriage, it also redefines parenting," said Cave in the brief. "Same-sex marriage purports to normalize a family structure that necessarily deprives children of something precious and foundational—either a father or a mother. Gay marriage deprives children of something they long for while at the same time telling children they do not need what they naturally crave."
He also points out that the Court would not only have to ignore the plain wording and history of the 14th Amendment, but would have to break with precedent in order to find the Constitution somehow requires states to license and acknowledge same-sex marriage, and points to the Baker v. Nelson decision in 1972 as an example of controlling precedent. Previous case law dictates that in order to find that same-sex marriage is a Constitutional right, it would have to be shown to be "deeply rooted in this nation's history, and tradition." But it is not, says Cave.
Cave argues against "genderless marriage" as "a Constitutional right" and points out that if federal courts take over marriage policy from the states and the legal standard for marriage is now going to be "a love and commitment standard," then states "will also be required to recognize polygamous and polyamorous marriages among adults who claim to be in loving and committed relationships."
Cave says the gay petitioners' arguments that traditional marriage laws are born of voters' and legislators' "irrational prejudice" and "animosity" are "nonsensical". He points out that such arguments would also mean that Supreme Court Justices and the Sixth Circuit Judges who disagree could likewise have no rational basis for disagreement other than the petitioners' accusations of irrational prejudice and animosity toward gay couples—which simply isn't the case.
The Supreme Court is scheduled to hear oral arguments on the issue on April 28.