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DIAZ: Same-sex marriage in the dock

Supreme Court must leave the issue to the states

- - Tuesday, March 26, 2013

The U.S. Supreme Court on Tuesday will commence its two-day consideration of oral arguments in the cases challenging the people's right to define marriage as it has always been: the union between one man and one woman. Marriage supporters will also gather today for a march from the Mall to the Supreme Court to celebrate marriage and send one message to the justices: We do not need another Roe v. Wade.

Forty years ago, the nation was having a healthy, robust debate about the beginning of life and abortion when the Supreme Court decided to play judicial despots and cut short the process envisioned by our Founding Fathers to invent a new constitutional right to abortion. That dark day, a 7-2 majority of the nine men in black robes decided for the entire country the fate of more than 50 million unborn lives lost through abortion to date and countless women scarred physically, emotionally and spiritually by their "choice." The American people were robbed by the Supreme Court of the ability to struggle and come up with the best solution to address the concerns of all its citizens.

Few would debate -- even among "pro-choice" legal scholars -- that the infamous Roe decision is one of the worst tragedies in modern American jurisprudence.

Now once again, the justices stand before that same mountain. The marriage cases before them offer the same allure to "bring progress." Or, as the other side continues to advertise, the court can be "on the right side of history." The reality is that these cases should be very simple for them. They should show the judicial restraint envisioned by our Constitution and, having learned from the mistakes of the past, they should allow the American people to continue to struggle and reach consensus on the issue of homosexual "marriage."

Those who support the biblical model of marriage indeed want the debate. That is the only thing we are asking of the court. Yet radical homosexual marriage supporters are asking the court to once again interject itself into the debate and cut it short. They want the nine justices to impose their will on the entire country by judicial fiat.

The justices should refuse.

Think about what the activists are asking. They want nine unelected judges to invalidate the vote of more than 7 million people in California who voted to preserve marriage in their state constitution (in the Proposition 8 case). Such action would not help the country in any way. As with Roe, it will only intensify the division and spark a new culture war for the religious freedom of those who believe in God's model for marriage.

As with Roe, which had absolutely no evidentiary record for the justices to give serious consideration to the medical realities of abortion, the marriage cases before the court could not be more troubling, legally speaking. In the Proposition 8 case, the obvious and disastrous bias of the trial court judge, who establishes the evidentiary record that is ordinarily used on appeal, has been well documented. Most blatant of all, Judge Vaughn Walker failed to disclose the he was in a long-term homosexual relationship that could, logically, benefit from the result of the trial -- not to mention he defied the Supreme Court in his zealous efforts to try to broadcast the trial in violation of the law, among several other extraordinary efforts in support of the homosexual "marriage" position.

In the Defense of Marriage Act case, the court is also being asked to take the extraordinary step of invalidating the findings of our elected officials, who are accountable to "we the people," that marriage is the best environment for procreation and the development of children, our future citizens, among many other compelling government interests that support the one man, one woman model for marriage.

Even supporters of homosexual marriage should stand opposed to the Supreme Court ruling in their favor in these cases. It will only make their "victory" an illegitimate one, as it was in the case of Roe. Everyone would know it.

On the other hand, homosexual marriage supporters have been doing a masterful job of spreading their message around the country and winning some impressive victories. The most recent ones were at the ballot box in Maryland, Washington, Maine and Minnesota. That is the way the process should work. We should have a full debate, with each side trying to persuade their fellow citizens of the best public policy on the issue.

The last thing we need is another Roe.

Mario Diaz is legal counsel for Concerned Women for America.