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Utah argues for children in same-sex marriage fight

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Posted at 8:31 AM, Feb 04, 2014
and last updated 2014-02-04 19:25:56-05

SALT LAKE CITY -- In its first brief in the appeal of Amendment 3, the Utah Attorney General's Office focused on how same-sex marriage would harm children.

"At the most basic level, Utah has a critical interest in preserving the child-centric, husband-wife ("conjugal") marriage culture that it has carefully nurtured since its inception as a State. Redefining marriage in an adult-centric, "consent-based" manner undermines that culture to the detriment of all Utah’s children," the state wrote in the brief.

The brief, filed late Monday night before the 10th U.S. Circuit Court of Appeals, is the first step to appeal a federal judge's ruling last year that overturned Amendment 3. In 2004, voters passed the constitutional amendment that defined marriage as between a man and a woman, and refused to recognize any other union.

On Dec. 20, 2013, U.S. District Court Judge Robert Shelby ruled that Amendment 3 violated the equal protection and due process clauses of the U.S. Constitution by denying same-sex couples the right to marry. Since that ruling, more than 1,300 same-sex couples have obtained marriage licenses in Utah before the U.S. Supreme Court issued a stay pending appeal.

Arguments in the case are slated for April 10 in Denver.

In the filing, the Utah Attorney General's Office and its hired counsel for the appeal, argue that "there is no fundamental due process right to marry someone of the same sex."

The arguments, however, largely focus on procreation and raising children in traditional homes.

Read Utah's brief in the Amendment 3 appeal here.

Utah's traditional definition of marriage "gently encourages parents" to put childrens' needs first, the state wrote. Redefining marriage in "genderless" terms would result in lower reproductive rates and fewer children being reared in an ideal environment by opposite sex parents, the state claims.

The state claimed a correlation between "genderless marriage and lower birthrates."

"The need to ensure adequate procreation is why, since time immemorial, and even in societies that embraced homosexual liaisons, marriage has always been conceived as a union between a man and a woman for the purpose of having children," the state wrote.

The state also said in its brief that preserving traditional marriage is vital to encourage religious freedom and reduce civic strife. The Utah Attorney General's Office noted that governments would be pressured to force religious social service agencies to accommodate adoption and foster care, punish people in wedding-related businesses who refuse to provide services based on religious grounds, and possibly revoke the tax-exempt status of churches who do not perform same-sex marriages.

"Preventing these kinds of social tensions and conflicts — and the infringements of religious freedom they could create — is an important and compelling State interest, legitimately grounded in the State’s concern for public welfare," the brief said.

The state wraps up the 178-page filing by saying Utah's Amendment 3 "does not dictate the choices of its citizens."

"By defining marriage as being between one man and one woman, Utah does not interfere with adults' ability to commit to an exclusive, loving relationship with others of the same sex, or to bring children into that relationship," the state writes. "Instead, the laws at issue here simply encourage a familial structure that has served society for thousands of years as the ideal setting for raising children."

"Nothing in the federal Constitution prevents Utah's citizens from making that choice."

The plaintiffs in the Amendment 3 case have until Feb. 25 to file a response.

Utah Attorney General Sean Reyes issued a statement Tuesday afternoon on the brief filed with the appeals court:

“The Utah Attorney General’s Office is dedicated to upholding the laws of the people.  Although this particular issue is highly charged, and understandably so, we reiterate our commitment to Utah citizens to defend all Utah laws. Our office’s involvement is not driven by political motives, but rather our sense of duty.  The team of attorneys and staff who have worked to defend Utah’s Constitutional Amendment 3 have varied personal beliefs on same-sex marriage, but respect their obligation to defend Utah law.

The brief submitted on Feb 3, 2014 clarifies why the United States Court of Appeals for the Tenth Circuit should uphold the decision of Utah’s citizens to retain the marriage definition that has been in place since the State’s inception.

The legal question at issue is not the fundamental right of same-sex couples to enter into exclusive and permanent relationships, raise children, or bequeath property at their death.  Utah law already gives those rights.  The constitutional question is whether it is reasonable for Utah's citizens to believe that a child benefits most from being raised by his or her biological mother and father in a permanent relationship, and that such relationships should therefore be encouraged through recognition as marriages.

This issue is a highly emotional one for Utah citizens and deserves the best arguments and representation on both sides.  Although the United States Supreme Court held in the Windsor case that states have the authority under the federal Constitution to abandon the traditional man-woman definition of marriage and to redefine it in another manner, it did not expressly answer the question of whether states have the authority to retain the traditional definition of marriage. 

The State of Utah firmly believes the definition of marriage adopted by 66 percent of Utah citizens through popular vote is legal not only under the Utah Constitution, but also the United States Constitution. It is the duty of the Attorney General to defend the validity of the state constitution, particularly a provision recently enacted by an overwhelming majority of the state's citizens.”

Also on Tuesday, the Coalition of African American Pastors USA and others filed an amicus brief supporting Utah's position in the Amendment 3 appeal.

Read the amicus brief here.