By Bob Allen
Southern Baptists joined Mormons in a legal brief Sept. 4 asking the U.S. Supreme Court to settle once and for all if same-sex marriage is a fundamental right protected by the Constitution.
The Church of Jesus Christ of Latter-day Saints and the Ethics and Religious Liberty Commission of the Southern Baptist Convention joined three other faith groups asking the nation’s high court to review a 10th Circuit Court of Appeals decision striking down Utah’s ban on same-sex marriage.
“The time has come to end the divisive national debate as to whether the Constitution mandates same-sex marriage,” lawyers said in a brief submitted on behalf of more than 100 million Americans “united by their solemn commitment to the institution of marriage, understood as the union of one man and one woman.”
The brief says the best way to resolve controversy over the definition of marriage is to let voters decide, but federal courts have disagreed, issuing a number of divided opinions about whether same-sex marriage is a fundamental right protected by the 14th Amendment.
The Utah brief contends that legal uncertainty “is especially burdensome” for religious organizations and individuals, because of questions it casts on other, competing, constitutional rights.
“Is their right to refrain from participating in, recognizing or facilitating marriages between persons of the same sex, contrary to their religious convictions, adequately shielded by the First Amendment and other legal protections?” it asks. “Or is further legislation needed to guard religious liberties in these and other sensitive areas?”
The brief says only a Supreme Court decision “can reduce the mounting tension surrounding such unresolved questions by removing the threat of judicially imposed same-sex marriage or freeing the democratic process to mitigate its effects.”
Other faith communities joining the argument are the United States Conference of Catholic Bishops, National Association of Evangelicals and Lutheran Church-Missouri Synod. The same five groups joined in an earlier brief in February defending laws in Utah and Oklahoma that define marriage as a union between male and female because they encourage procreation.
Thirty-one of the 50 states currently ban gay marriage. Since the Supreme Court struck down a portion of the federal Defense of Marriage Act last year, however, more than 30 federal and state judges have ruled that same-sex marriage bans are unconstitutional. A federal judge in Louisiana ended the streak Sept. 3, ruling that the state has “legitimate interest” in regulating marriage.
Today the Ninth U.S. Circuit Court of Appeals will hear oral arguments about same-sex marriage cases from Idaho, Nevada and Hawaii.