Scott G Winterton, Deseret News
Traditional marriage supporters gather Tuesday, March 26, 2013 at the Utah State Capitol to celebrate marriage. Hundreds of backers of same sex marriage turned out to voice their view.
Faith communities and religious organizations have a long history of upholding traditional marriage for reasons that have nothing to do with homosexuality. Their support for husband-wife marriage precedes by centuries the very idea of same-sex marriage. —Court brief

SALT LAKE CITY — Dozens of academics, several states and five religious organizations, including the LDS Church, weighed in on Utah's fight against same-sex marriage with hundreds of pages of arguments filed Monday in a federal appeals court.

The Church of Jesus Christ of Latter-day Saints, Catholic, Lutheran, Baptist and evangelical churches and groups joined together to rebut the contention that their belief in marriage between a man and a woman is borne of bigotry.

"The accusation is false and offensive," according to a 53-page court brief. "In truth, we support the husband-wife definition of marriage because we believe it is right and good for children, families and society. Our respective faith traditions teach us that truth. But so do reason, long experience and social fact."

At least 20 friend-of-the-court briefs, many of them joint efforts by multiple organizations or people, were filed in the 10th Circuit Court of Appeals before Monday's midnight deadline supporting Utah's case from varied points of view.

Arguments include defense of the long-standing definition of marriage, and that states have the authority to regulate marriage and voters have the right to define it through the democratic process.

Briefs also argue that only a man and a woman can bear children and traditional marriage is the best environment to rear them. Some of the briefs contend that gay and lesbian people are not a protected class, and that sexual orientation isn't solely biological and can change over time.

The U.S. Conference of Catholic Bishops, National Association of Evangelicals, The Church of Jesus Christ of Latter-day Saints, The Ethics & Religious Liberty Commission of the Southern Baptist Convention, and the Lutheran Mission Synod say they bear no "ill will" toward same-sex couples.

"Faith communities and religious organizations have a long history of upholding traditional marriage for reasons that have nothing to do with homosexuality. Their support for husband-wife marriage precedes by centuries the very idea of same-sex marriage," according to the brief.

The brief outlines why marriage between a man and a woman is "sanctioned by God as the right and best setting for bearing and raising children" from the perspective of each of the five faiths.

"No other institution joins together two persons with the natural ability to create children for the purpose of maximizing the welfare of such children," according to the brief.

"We know, from personal experience over numerous decades of ministering to families and children, that more focus on satisfying adult needs will not benefit vulnerable children."

The brief also explains why the support of religious organizations for traditional marriage laws "by no stretch undermines their constitutionality."

Laws protecting traditional marriage "are entitled to be judged on their merits based on settled rules of law — not on a more demanding standard born of suspicion toward religion, religious believers or their values," according to the brief.

Utah voters approved a state constitutional amendment in 2004 defining marriage as between a man and a woman. Three same-sex couples challenged the law in federal court last March.

U.S. District Judge Robert J. Shelby found the law violated the equal protection and due process provisions in the 14th Amendment. Shelby ruled that it denies gay and lesbian citizens their fundamental right to marry and demeans the dignity of same-sex couples for no rational reason. He agreed with Utah that marriage laws have traditionally been and remain the province of states, but must comply with the U.S. Constitution.

In its appeal filed last Monday, the state argued that it has the constitutional authority to define marriage, and the union of a man and a woman is the best setting to bear and rear children. It also contends that traditional marriage furthers the state's interests in accommodating religious freedom and preserving social harmony in the state, while redefining marriage would be a recipe for social and religious strife.

Attorneys for the three gay and lesbian couples who sued the state have until Feb. 25 to respond to the state. The Denver-based 10th Circuit approved their request to file a reply containing as many as 24,000 words. Another flurry of briefs supporting the plaintiffs is expected after their filing.

Frank Mylar, a Salt Lake City attorney representing the American Leadership Fund and 19 professors, argues that same-sex marriage advocates are trying to make marriage into something it's not.

"For example, a court could determine that orange juice can include juice made solely with potatoes, but it would have created something else by doing so. That marriage is composed of a man and a woman is as inseparable from the word marriage as orange juice is inseparable from oranges," he wrote.

Shelby also wrote in his decision that the purpose and effect of Amendment 3 is to deny the benefits and responsibilities of marriage to same-sex couples, "which is another way of saying that the law imposes inequality.”

In one brief, three law professors, including BYU's Brent G. Scharffs, attempt to rebut that conclusion, saying it's inaccurate to say voters approved the amendment solely to express moral disapproval of same-sex marriage. The law professors say voters had a variety of motives for favoring the amendment.

"In other words, it is wrong to say that the amendment would not have become law 'but for' the irrational prejudice, animus, of voters," they wrote.

Three Princeton University scholars — Sherif Girgis, Ryan T. Anderson and Robert P. George — who wrote the book "What Is Marriage? Man and Woman: A Defense," center the arguments in their brief on the book's premise that marriage is conjugal union. George is a member of the Deseret News Editorial Advisory Board.

"There are excellent reasons to think that marriage is a conjugal relationship — the type of union that only a man and woman can form — rather than just the sort of emotional union that any two (or more) adults can form," they wrote.

The three argue that the "misleadingly" called gay marriage debate is not about homosexuality but marriage.

"It is not about whom to treat as eligible to marry, but about which understanding of the nature of marriage to enshrine legally. It marks a pivotal stage in a decades-long struggle between two views of marriage," they wrote.

* * *

Those filing briefs include:

U.S. Conference of Catholic Bishops; National Association of Evangelicals; The Church of Jesus Christ of Latter-day Saints; The Ethics & Religious Liberty Commission of the Southern Baptist Convention; Lutheran Mission Synod

American Leadership Fund and 19 professors

Family Research Council

The Center for Urban Renewal and Education, Coalition of African-American Pastors USA, Frederick Douglas Foundation

Sutherland Institute

George Mason University law professor Helen Alvaré

University of Dallas professor David R. Upham

Institute for Marriage and Public Policy

The states of Indiana, Alabama, Alaska, Arizona, Colorado, Idaho, Montana, Nebraska, Oklahoma and South Carolina

The state of Michigan

The Center for Constitutional Jurisprudence and 27 scholars of federalism and judicial restraint.

Parents and Friends of Ex-gays & Gays

Concerned Women for America

National Association for Research and Therapy of Homosexuality

Dr. Paul McHugh

Princeton University scholars Sherif Gigis, Ryan T. Anderson and Robert P. George

Law professors Daniel O. Conkle, Michael Perry and Brett G. Scharffs

Professors Douglas W. Allen, David J. Eggebeen Byron R. Johnson, Catherine R. Pakaluk, Joseph Price and Mark D. Regnerus

Traditional marriage advocates Robert Oscar Lopez, Doug Mainwaring and Alana Newman

Liberty Counsel Inc.

The Becket Fund for Religious Liberty

16 Utah counties, Lynn Wardle

BYU family life professors Alan J. Hawkins and Jason S. Carroll

Colorado lawyer D'Arcy Straub

81 Utah legislators

David Boyle

Eagle Forum Education & Legal Defense Fundd

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