Unique Points Made on Reality of Marriage

CCG 9th Circuit Amicus Brief - Part 1
Prop 8 Voters Rational for Defining Marriage to Recognize Reality

SAN FRANCISCO, September 25, 2010 -- The Amicus Brief filed with the 9th Circuit Court of Appeals in the Prop 8 case was unique amongst the briefs filed. First the brief attempted to resolve the sources of confusion that Judge Walker and so many people have today about issues related to marriage and family by focusing on simple realities. While Judge Walker contended that voters were irrational to define marriage as a union of a man and a woman in Prop 8, CCG demonstrated that Prop 8 merely recognized the reality that marriage unites a man and a woman with each other and any children born from their union. There is a public interest in recognizing that reality.

CCG Amicus Brief

Part 1 Summary- 
Prop 8 Voters Rational for Defining Marriage to Recognize Reality

Part 2 Summary -
Religious liberty - Pope's Words Used to Challenge Walker

Entire brief as submitted

Second, the brief demontrated that the issue of same-sex “marriage” really has little to do with homosexuality or “gay rights”, a point that many people miss. Many do not realize that there are actually two conflicting understandings of marriage that are prevalent in the culture.

  • Some think that marriage is a committed relationship for the private interests of adults.
  • On the other hand most know that marriage unites a man and a woman with each other and any children that may result from their union.

It is only through enshrining the first definition in law whether by legislation or judicial fiat, that same-sex “marriage” can become legal. In fact, in his findings Walker actually created a new definition of marriage then used it to support his decision. Indeed, if marriage is only a committed relationship for the private interest of adults, as he contended, then there would be no basis for restricting marriage as between a man and a woman except for discrimination. Walker’s fabricated definition of marriage does not bear any resemblance to the gut-level understanding of marriage shared by the majority of the voters.

Background

Read about Judge Walker's
radical decision (Aug. 2010)

Read quotes from decision

The majority of Californians rationally understand that marriage unites a man and a woman with each other and any children that may result from their union. Holding this position does not require people to have an opinion one way or the other about homosexuality or same-sex couples. The voters decision about marriage does have an impact on the desires of some-same sex couples, but this situation for most people is more analogous to the principle of double effect that is applied in medical ethics. For most, it is not the intent to deprive same-sex couples, it is only the consequence of recognizing the reality that marriage unites and man and a woman with each other and any children that result from their union.

Why do the majority of Californians recognize this reality?

It is no coincidence that the majority of Californians and people from every culture have recognized this reality since the beginning of time. What is commonly known as "traditional" marriage has nothing to do with tradition but is a recognition of a fact -- a man and a woman form a single human unit necessary for the continuation of society. “[T]heir unity in a certain sense forms a single person, the potential procreator from whom . . . a new human individual flows in material, bodily, personal continuity.”1  When a culture, state, or religions recognized that reality, it is called marriage.

Current state laws serve to undermine marriage and obscure its meaning. The Obama Administration has actually said that there is no state preference for marriage for procreation and the rearing and education of children. Therefore the brief pointed out that recognizing the reality of marriage does not require that the state have a social policy objective of “channeling potentially procreative conduct” into it.2  The brief continued:

Rather, the state may recognize the relationship for what it is, and the court may uphold that decision without having to find a sociological benefit.  Simply put, marriage laws involving a union of a man and a woman were not necessarily created to “channel” sexual activity or specifically for some social objective but were a recognition from the beginning of time of the natural family that results from the union of a man and a woman.”

Procreative acts leading toward the generation of children have always been understood to be essential to marriage between a man and a woman.  Indeed, the district court erred when it concluded that “states have never required spouses to have an ability … to procreate in order to marry.”  (Opinion at 113: 7-8.)  In California, one of the lawful grounds for nullifying a marriage is if “either party was, at the time of marriage, physically incapable of entering into the marriage state …”  CAL. FAM. CODE § 2210(f).
   
The fact that the district court found that “parent’s genders are irrelevant to children’s developmental outcomes” (Opinion at 127:25-26) and “[s]ame-sex couples can have (or adopt) and raise children” (Opinion at 128:1) has no consequence for the understanding that marriage unites a man and a woman with each other and any resulting children.  Nor do those findings invalidate the reality of marriage as a foundational institution in society.  The court refers to instances where children have tragically been deprived of their natural mother or father, or both.  Indeed, unmarried friends or relatives commonly step in to parent children who have lost their mothers and fathers—such situations do not affect what marriage is.

Walker’s contention that marriage between a man and a woman is an “artifact of a time when the genders were seen as having distinct roles in society and in marriage” is absurd and fails to recognize another reality. …[D]espite changes in social relations, women remain the only citizens possessed of a womb and capable of gestating and giving birth to future citizens.  Thus, any such changes [in gender roles] do not change the fact that the union between a man and a woman is procreative in nature (independently of the actual fruitfulness of the union), and constitutes the primary source for the continuation of society.

The brief went on to point out that Walker’s new definition of marriage would cause concrete harm to children and society.

The district court defined marriage as a private, contractual arrangement among adults for the private interests of adults.  But marriage as commonly understood does not exist solely for adults—it not only unites a man and a woman with each other, but also with any children that naturally result from that union.  Indeed, every child without exception has a mother and father.  And children need fathers not simply to come into existence, but also during their childhood and beyond.  Marriage is the only societal institution that unites a man and a woman with each other and any children that may result from the union.

By upholding and supporting the only institution that unites a man and a woman to each other and any children that may result for their union as an ideal for raising and nurturing future citizens, Proposition 8 encourages persons to enter into that relationship. 

Reliance on the common understanding of marriage is not a bare appeal to tradition or custom; rather, the common understanding is a recognition that the source of all human life is the union of a man and a woman, and that every person without exception has a mother and a father.

The entire CCG Amicus Brief

WILLIAM E. MAY, MARRIAGE THE ROCK ON WHICH THE FAMILY IS BUILT. p73. Ignatius Press. 2009. (quoting Germain Grisez, Dualism and the New Morality).

Defendant-Intervenors-Appellants’ Opening Brief (“Intervenor’s Brief”) at 78.



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