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The Sutherland Institute said Shelby mischaracterized the goal of Amendment 3 as imposing inequality on same-sex couples, "as if legislators had gathered in a brainstorming session to determine how to harm the chances of same-sex couples, and came up with a thing called marriage to which these couples could be intentionally excluded."
"The court’s understanding of marriage suggests that it is a government program with social engineering ends," such as "incentivizing" childbirth or increasing statistics. The Sutherland Institute said such a view of marriage is not aligned with a "system of ordered liberty."
"While state laws may not deny the dignity of individuals, the Constitution does not require states affirmatively to try to bestow dignity on individuals, if indeed, it could do so," the institute said.
Twelve states filed briefs, echoing and in many instances replicating language used in Utah’s brief as well as one filed in a Nevada case pending before the 9th Circuit Court of Appeals. The state of Michigan filed its own brief; eleven other states — Indiana, Alabama, Alaska, Arizona, Colorado, Idaho, Indiana, Montana, Nebraska, Oklahoma and South Carolina — filed jointly.
They argue that neither Congress nor the courts has authority to dictate what the states’ must adopt as marriage policy, invoking a historical, traditional, exclusive definition. Shelby’s ruling defines marriage "as nothing more than social validation of personal bonds of affection" which leads "not to the courageous elimination of irrational, invidious treatment, but instead to the tragic deconstruction of civil marriage and its subsequent reconstruction as a glorification of the adult self."
As in Utah’s brief, the states raise a concern about polygamy, which the state of Michigan describes as a "competing understanding of family life" found in more than 40 countries. They say once the "natural limits" of defining marriage to one man and one woman are gone, "any grouping of adults would have an equal claim to marriage."
The states also reject any discriminatory intent behind same-gender marriage bans, saying it is implausible that the "traditional definition of marriage was invested as a way to discriminate against homosexuals or to maintain the ‘superiority’ of heterosexuals vis-a-vis homosexuals."
Rather, civil recognition of marriage between one man and one woman is predicated on the procreative ability of opposite-sex couples and aimed at encouraging them to stay together to rear the children they conceive.
The states also say childless opposite-sex couples reinforce this norm by, as the state of Michigan explained, establishing an example for other couples of the opposite sex who will have children."
"The law serves the goal of establishing ideal standards, encouraging the public to align themselves to these archetypes," Michigan said in its brief.
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