SALT LAKE CITY — In the final word before a federal appeals court hears arguments next month, the state of Utah argued that its marriage definition must be preserved as a matter of state sovereignty and the long-term benefits for children.
Domestic relations is a “virtually exclusive province of the states,” special assistant Utah Attorney General Gene Schaerr wrote.
“That’s why a decision affirming the district court would not be the Loving of our age — a narrow decision enforcing a clear Fourteenth Amendment command against one type of naked racial discrimination,” Schaerr wrote, referring to the historic case of Loving v. Virginia, that struck down interracial marriage bans.
Rather, he said, it would like another case — “an unprincipled judicial wrecking ball hurtling toward an even more important arena of traditional State authority.”
The state continued to stand by the studies it cited as evidence that redefining marriage could pose risks to children, including:
- Social, economic damage from “increased fatherlessness and mothernessless;”
- Reduced birth rates, “with the demographic and economic damage that would impose on all future children;”
- A “risk of increased self-interest in parental decision-making on a range of issues, including not just romantic relationships and procreation, but also recreation, career choices and living arrangements.”
On Dec. 20, U.S. District Court Judge Robert Shelby overturned Amendment 3 — Utah’s ban on same-sex marriage, ruling that it violated gay and lesbian couples’ rights to equal protection and due process. Utah appealed the ruling. Nearly 1,300 same-sex couples married in the state before the U.S. Supreme Court granted a stay.
Amendment 3, passed by 66% of voters in 2004, defines marriage in Utah as between a man and a woman and does not recognize anything else.
“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,” attorney Peggy Tomsic wrote.
In its reply brief, the state continued to emphasize that preserving Amendment three would avoid social and religious strife.
“A judge- imposed redefinition of marriage will dramatically accelerate and intensify religious conflicts — by, for example, making it impossible for wedding photographers and bakers with religious objections to same- sex unions to avoid religious conflicts simply by limiting their businesses to man-woman marriage ceremonies,” Schaerr wrote.
The state of Utah also took note of another federal judge’s ruling that essentially decriminalize polygamy (the attorney general is in the midst of deciding if it will appeal that case), writing: “That slippery slope is yet another reason to reject Plaintiffs’ due-process argument, and leave the definition of marriage to democratic processes.”
Wrapping up its final arguments, Utah insisted that preserving the voter-approved definition of marriage is important to preserve state liberty.
“That kind of liberty is particularly important in times of rapid social change, when our ability to preserve and honor diversity of opinion, and our ability to experiment with new ideas, are most precious. Through democratic processes, such experimentation is now occurring in the several states on the crucial subject of marriage. Public opinion is apparently in flux,” Schaerr wrote.
“No one yet knows what the ultimate outcome will be, either nationally or in any given State. But the fact that different States have thus far chosen different paths is not a sign of political weakness; it is a sign of a healthy and diverse national republic.”
Arguments in the case will be heard on April 10 at the 10th U.S. Circuit Court of Appeals in Denver.