State changes focus
in gay marriage case

Tradition, moral values are cited
in its state Supreme Court appeal

By Linda Hosek

The state has dropped its focus on children as a compelling reason to ban same-sex marriage in its appeal to the state Supreme Court.

In its opening brief, it cites tradition, moral values, propagation and recognition of the state's marriage law by other governments as reasons to limit marriage to a man and a woman.

And it again tells the high court that it was wrong in 1993 when it ruled that Hawaii's marriage law discriminates on the basis of gender.

The 35-page brief, mailed Tuesday from the Washington, D.C., attorney hired to prepare it, was expected to be filed today, said Dorothy Sellers, deputy attorney general.

But Sellers declined to discuss the brief until it is filed with the court.

Dan Foley, attorney for the three same-sex couples who sued for the right to marry, said the brief doesn't address the facts from a recent ruling that gave same-sex marriage the green light.

He also said it dwelled on arguments previously rejected by the Supreme Court and offered opinions without fact.

"It's a political diatribe, not a legal brief," he said.

The brief reflects the state's latest effort to use the courts to stop same-sex marriage.

Circuit Judge Kevin Chang in December ruled that the state failed to offer a compelling reason to justify the sex discrimination the state Supreme Court identified in the state's marriage law.

Chang based his opinion on evidence from a two-week trial in September. The state argued that children had the best chance of reaching their optimal development if raised in a family with a mother and father.

The same-sex plaintiffs argued that children thrived based on love, not on the number, gender or sexual orientation of parents.

Chang said the state failed to prove that same-sex marriage would cause adverse consequences to children, the economy or citizens if other governments refused to recognize same-sex marriages.

In its brief, the state says the state Supreme Court misinterpreted the word "sex," using it to express "gender" rather than "sexual orientation." Interpreting it as sexual orientation would have led to a different legal conclusion.

The brief also says the state has an interest ensuring moral values in the area of marriage.

But Foley said marriage is a civil contract. He also said the state Legislature this session granted numerous rights and benefits for same-sex couples, adding, "How can the state argue same-sex marriage is immoral if it gives legal recognition to same-sex couples?"

Foley said he expected all briefs to be filed by June.

In a separate action, the state Legislature this session approved a bill that will allow voters to decide if they want lawmakers to limit marriage to opposite-sex partners.

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