The 3 Arguments Against Gay Marriage That May Decide It Once and for All

Controversial laws in states across the country have inspired legal battles that have finally risen to the U.S. Supreme Court.

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Jan 8, 2015· 3 MIN READ
Hayley Fox is a regular contributor to TakePart who has covered breaking news and the occasional animal story for public radio station KPCC in Los Angeles.

If 2014 was the year of gay marriage momentum in American states, 2015 is shaping up to be the year of federal action. On Friday, the U.S. Supreme Court will meet in private to decide whether it will hear any of the five gay marriage cases that have made their way up through lower courts.

The last time the Supreme Court reviewed gay marriage cases was in October, and it declined to take any up. At that time only 19 states had marriage equality; now that number is at 36, said Charles Joughin, national press secretary for the Human Rights Campaign, a civil rights group that advocates for LGBT equality.

“Seventy percent of Americans now live in a state with marriage equality, and that number was considerably lower the last time these justices considered whether to take up a marriage case,” he said.

Four of the cases, which come from Michigan, Kentucky, Ohio, and Tennessee, emerged from a November decision by the U.S. Court of Appeals for the Sixth Circuit that bucked the national trend by upholding gay marriage bans in those states. The fifth case, Robicheaux v. Caldwell, comes from Louisiana and includes seven same-sex couples who are appealing a lower court’s decision to uphold the state’s ban on same-sex unions.

Experts believe that the Sixth Circuit’s controversial decision (as well as the rapidly increasing number of states that have legalized gay marriage within their own jurisdiction) may result in the Supreme Court deciding to put it on the docket.

Here are the main issues the justices would have to evaluate if they agree to rule on the gay marriage debate:

AntiGay Marriage Argument No. 1: It’s About Making Babies

One of the most commonly employed anti–gay marriage arguments is that of “responsible procreation.” Sometimes this phrase simply implies that gay couples aren’t as qualified to parent as straight ones, so it’s the government’s responsibility to limit marriage to heterosexual couples. Although a large body of scientific evidence refutes these claims, the argument has persisted.

“Responsible procreation” can also refer to the idea that marriage was created as an incentive for couples to stay together if they have an unplanned pregnancy, explained Jon Davidson, legal director for Lambda Legal, who is involved in a few of the cases facing the Supreme Court. Provided with benefits such as tax deductions and tax breaks, married heterosexual couples will be more likely to raise their child together, some say. Because gay couples can’t get pregnant by accident, they don’t need to be offered the incentive of marriage, the argument goes.

Judge Jeffrey Sutton sides with these claims in his Sixth Circuit decision by writing that the states’ recognition of these differences is founded:

“That does not convict the States of irrationality, only of awareness of the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended offspring.”

In the past, gay marriage opponents have even argued that by allowing gay couples to marry, states would be discouraging heterosexual couples from doing so.

AntiGay Marriage Argument No. 2: Voters Should Come Before Courts

Although a flurry of lawsuits have been effective in overturning gay marriage bans in dozens of states, ban supporters claim that marriage shouldn’t be decided by courts but rather through the democratic process. This means that when a majority of Americans vote to prohibit same-sex unions in their state, that decision should stand.

This became a key argument in both the Louisiana and the Sixth Circuit cases and is echoed in the judges’ final decisions. In his upholding of gay marriage bans in Michigan, Kentucky, Ohio, and Tennessee, Sutton wrote that by leaving this decision up to voters, states are instilling a sense of power in the people.

“When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers,” he wrote.

In Louisiana, U.S. District Court Judge Martin Feldman stated that “fundamental social change” is “better cultivated through the democratic process.” He went on to write: “Louisiana’s regime pays respect to the democratic process; to vigorous debate. To predictable controversy, of course.”

Marriage has also historically been an issue regulated on a state-by-state basis, said Laura Durso, director of the LGBT Research and Communications Project at the Center for American Progress. Traditionally, it is up to the states to decide rules around weddings, such as the age at which someone can consent to marriage and whether cousins can marry. But they must do so within the confines of the Constitution and its discrimination protections, she said.

AntiGay Marriage Argument No. 3: It’s Not in the Constitution

One of the most highly disputed arguments against gay marriage is that it’s not an inherent right protected by the Constitution. In the controversial Sixth Circuit decision that upheld gay marriage bans in four states, Sutton wrote: “But the right to marry in general, and the right to gay marriage in particular, nowhere appear in the Constitution. That route for recognizing a fundamental right to same-sex marriage does not exist.”

Although Sutton acknowledges that the Supreme Court ruled marriage was indeed a “fundamental right” in the 1967 case of Loving v. Virginia, which legalized interracial marriage, the judge wrote that this “right” doesn’t apply to same-sex couples.

In the Louisiana case, plaintiffs argued that barring same-sex couples from marriage discriminates based on sexual orientation. Judge Feldman disagreed, writing in his decision to uphold the gay marriage ban that “neither the Supreme Court nor the Fifth Circuit has ever before defined sexual orientation as a protected class, despite opportunities to do so.”

Gay marriage supporters say that although it’s not explicitly outlined in the Constitution, the 14th Amendment and its Equal Protection Clause are intended to protect vulnerable minorities such as the LGBT community from discrimination, according to Lambda Legal’s Davidson. It is up to judges to responsibly interpret these protections and intervene in the democratic process when necessary.