TN AG: Procreation a strike against gay marriage

The ability of heterosexual couples — and not same-sex couples — to have children is one reason why the U.S. Supreme Court should not recognize gay marriage, attorneys for Tennessee say.

The Tennessee Attorney General filed a brief with the court Friday, responding to arguments previously made by three couples who are fighting to have their marriages recognized by the state.

Forms of the word “procreate” appear at least 17 times in the 49-page brief.

Among the main points of the state’s argument:

•The Supreme Court has based decisions using a definition of marriage as one man and one woman.

“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 reads. “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.”

•Same-sex couples cannot procreate and jeopardize 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 state interest,” the brief reads. “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.”

•Same-sex marriage violates state policy, and Tennessee has a right to stand apart from other states.

“Tennessee does not ‘target’ same-sex couples who marry out-of-state; Tennessee recognizes out-of-state marriages depending upon whether they comport or conflict with Tennessee’s own public policy,” the brief reads.

“When a State has exercised its sovereign authority to establish its own policy and reaffirm the traditional definition of marriage, that authority must not be intruded upon by requiring it to give way to the policy of another State that has chosen to expand its marriage definition.”

The written argument gives a preview and legal citations for oral arguments that will occur before the Supreme Court in Washington, D.C., on April 28. Laws banning gay marriage in four states — Tennessee, Ohio, Kentucky and Michigan — will be debated in a two-hour hearing that day.

Reach Stacey Barchenger at 615-726-8968 or on Twitter @sbarchenger.