Tenn. A.G. Sends Justices New Gay Marriage Brief

(CN) - Tennessee's attorney general cited the ability of a man and a woman to have children as an argument against gay marriage in a brief addressed to the nation's high court.

Three same-sex couples who now live in Tennessee sued the state in 2013, challenging its traditional definition of marriage. One couple was married in California in 2008 and two couples were married in New York in 2011.

A district ruled in favor of the same-sex couples in March 2014, but the 6th Circuit reversed in November. A month later, Tennessee asked the U.S. Supreme Court not to review the decision, but the high court decided in January to hear the case.

In a new brief to the Supreme Court, Tennessee Attorney General Herbert Slatery noted that the Volunteer State does not recognize same-sex marriages performed out of state, and said procreation is an important function of marriage.

"Substantive-due-process principles do not require Tennessee to recognize petitioners' same-sex marriages, because there is no fundamental right to same-sex marriage. Decisions of this court recognizing a fundamental right to marry have considered marriage under its traditional definition: the union of one man and one woman," the brief states. "The fundamental importance of marriage is necessarily linked to the procreative capacity of that man-woman union, and this court has said that the right to marry is fundamental precisely because marriage and procreation are fundamental to the existence of society."

Slatery argued that defining a marriage as between one man and one woman is based on the "legitimate state interest" of procreation and family stability.

"Maintaining a traditional definition of marriage ensures that when couples procreate, the children will be born into a stable family unit, and the promotion of family stability is certainly a legitimate interest," Slatery wrote. "The same situation is simply not presented by same-sex couples, who as a matter of pure biology do not naturally procreate. So there exists a rational explanation for not expanding marriage to same-sex couples."

The high court's 2013 United States vs. Windsor ruling struck down a federal law defining marriage as the union of one man and one woman. Slatery said this case is different because it challenges Tennessee's sovereignty.

"The constitution does not compel the result petitioners seek, and the ongoing debate regarding same-sex marriage is properly left to each state. The constitution vests each state with the power to define marriage for its own community, and our federal structure accounts for the kind of division that currently exists among the states on the question [of] whether same-sex marriage should be recognized," the brief states. "Each state must be afforded the ability to best address the needs, wishes, and values of its own people."

Just as it is the right of New York and California to allow same-sex marriage, it is Tennessee's right to not recognize such marriages, Slatery argued, asking for the Supreme Court to affirm the 6th Circuit decision.

Reply briefs from the petitioners in same-sex marriage cases from Tennessee, Ohio, Michigan and Kentucky are due to the U.S. Supreme Court by April 17.

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