Lund Contributes to SCOTUSblog Same-Sex Marriage Symposium

"Recent attacks on the constitutionality of our nation’s traditional definition of marriage have no basis in reason or in the law," says Professor Nelson Lund in an argument written as part of a SCOTUSblog same-sex marriage symposium: Same-sex marriage in the courts of law and reason.

"The Supreme Court should step in now to reaffirm what has always been true: nothing in the U.S. Constitution requires or permits the federal courts to invalidate legislative decisions defining civil marriage as the union of one man and one woman," he writes, citing a number of cases to support this assertion.

Same-sex marriage symposium: Same-sex marriage in the courts of law and reason, SCOTUSblog, September 18, 2012. By Nelson Lund. 

"Children are the result of unions between men and women, and every civilization has recognized that responsible procreation is critical to its survival. The institution of marriage has been established in virtually every known human society, including our own, and officially recognized marriages have always been exclusively between men and women. This is not an accident or an expression of unreasoned prejudice. It is a perfectly reasonable implication arising from the civil purpose of marriage.

"Next to the desire for self-preservation, sexual passion is perhaps the most powerful drive in human nature. Heterosexual intercourse naturally produces children, sometimes unintentionally, and it does so only after a nine-month lapse. The result can be uncertainty about paternity or indifference to it by the father. If left unchecked, this disconnect between men and their offspring would deprive many men of adequate incentives to invest in rearing their children. Such widespread irresponsibility would have made the development of civilization impossible.

"The fundamental purpose of marriage has been to encourage and assist biological parents, especially fathers, to take responsibility for their children, and sometimes to require them to do so. Because this institution is a response to the natural effects of heterosexual intercourse, the very meaning and definition of marriage has always been inseparable from the problem it is meant to address. Even if you think the problem no longer exists, it does not follow that those who disagree with you are bigots or that they could have no legitimate reasons for their beliefs."

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