Amendment 3 targets gay couples, lawyers argue in new filing

Posted at 12:47 AM, Feb 26, 2014
and last updated 2014-02-26 13:31:58-05

SALT LAKE CITY -- Utah's Amendment 3 treats same-sex couples as "strangers, rather than families, demeans their deepest relationships and stigmatizes their children by communicating that their families are second class," lawyers for three gay couples suing the state said in a new legal filing.

The filing is their response to Utah's appeal of a federal judge's decision in December that declared Amendment 3 unconstitutional. The decision cleared the way for more than 1,300 same-sex couples to wed in Utah for 17 days until the U.S. Supreme Court halted it pending the appeal.

The brief was filed late Tuesday night with the 10th U.S. Circuit Court of Appeals in Denver.

Read the filing by the plaintiffs in the Amendment 3 case here.

Contrary to claims made by the state, the couples seeking the right to marry do not ask for a "new right," attorney Peggy Tomsic wrote, but "the same freedom to marry enjoyed by all other Utah citizens."

Amendment 3, which defines marriage as between a man and a woman and does not recognize anything else, passed in 2004 with over 66% of the vote.

"With remarkable candor, the State concedes that the express purpose of Amendment 3 is to provide 'special privilege and status' to opposite-sex couples and their children, in order to send the message that they are the State’s preferred families... and to withhold protections from families headed by same-sex couples, in order to avoid sending the message that they are on a par with traditional man-woman unions," Tomsic wrote.

"The State seeks to justify the resulting stigma and injury inflicted on same-sex couples’ families based on fears that treating same-sex couples equally might, hypothetically, diminish the desire of opposite-sex couples to marry and have children."

Indeed, Tomsic wrote, Amendment 3 does nothing to encourage opposite-sex couples to marry or have children.

"As numerous courts have found, there is no rational connection between excluding same-sex couples from marriage and the State’s asserted interests in procreation or parenting," she wrote.

"Even if the State could articulate some legitimate purpose served by Amendment 3, which it cannot, laws intended to harm 'a politically unpopular group' cannot survive any level of constitutional review."

The plaintiff's brief attacked the state's assertions that it was trying to create a "child-centric" marriage culture, and that allowing same-sex marriage would create less commitment to children. Tomsic wrote that the state's idea "has no footing in any reasonably conceivable state of facts" and ignores thousands of Utah children being raised by same-sex parents.

"Marriage is not, as the State would have it, a zero-sum game that pits the needs of children against the desires of adults," the plaintiffs wrote.

Utah also doesn't ban drug addicts, child abusers or infertile couples, but does prohibit same-sex couples from marrying, the plaintiffs said in their brief, underscoring their assertion that Amendment 3 discriminates.

"The exclusion of same-sex couples from civil marriage has no effect on who can be a parent, nor does it affect opposite-sex couples’ incentives to raise their biological (or non-biological) children within a marital relationship in any rationally conceivable way, as numerous courts have recognized," Tomsic wrote.

Challenging Utah's claim in its filing that preserving traditional marriage preserves social harmony, the plaintiffs said it was "deeply offensive" and "repugnant" to the constitution.

"The State recognizes as much when it clarifies that this argument does not mean 'the State can invoke concerns about religious freedom or religion-related social strife as a basis for denying rights otherwise guaranteed by the Constitution," Tomsic wrote. "Yet the State persists with this argument nonetheless."

The Utah Attorney General's Office will file a reply in the coming weeks. The 10th Circuit Court of Appeals has scheduled arguments in the case in April.

In a recent interview with FOX 13, Utah Attorney General Sean Reyes defended his office's appeal of Amendment 3, insisting he has a duty to do so.