Amendment 3 targets gay couples, lawyers argue in new filing

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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.


    • Eric Anderson

      A constitutional amendment was passed by a majority of the voters. The executive branch of the State government, which includes the AG, has an obligation to defend the amendment.

      Beyond that, the issue remains open until the USSC rules. Somebody’s gotta do it. Why not Utah?


    This is a state of prejudice and hate!
    living under a cloak of disguise!

    This is about rights! The Constitution of The USA and Bill of rights
    states that we are equal as citizens.

    The animosity hate and discrimination needs to stop!

    The bible thumpers need to follow
    lest we judge our self before judging others.

  • Rhonda

    What wasn’t achieved at the ballot box is now trying to be in the courts, the courts should not be allowed to undermine the voters.

    • John

      Voters aren’t allowed to undermine the minorities rights. How would you feel if the majority voted to outlaw christianity or whatever religion you belong to, what if the majority voted to ban women’s voting rights, interracial marriages, etc? Just because the majority voted for it doesn’t make it right, legal, or constitutional. State’s can’t vote to add amendments that infringe upon someone’s US Constitutionally guaranteed rights.

  • Dylan

    Rhonda the vote was 10 years ago. A lot of things change in ten years. If the state voted today I guarantee it wouldn’t be that big of a discrepancy I can promise you that. And you people that judge are in no place to do so. If their is a god let that be up too him when their time comes. But until then let them live their lives the the way that makes them happy!

  • Daniel Roybon

    Just thought I should make a note regarding people saying not to judge here, because God expects his children to agents for themselves and therefore compels all of us to make judgments for ourselves which in turn we will all eventually be judged for in the long run on Judgement Day, or the Last Day as the scriptures put it.
    God did NOT want to His children (all of US) to judge blindly or without a guide of rules, or He (God) would never have intervened with mankind at all, but the fact is that God did, He gave us prophets ancient and modern who have been given very great knowledge from Him. And God had those Prophets keep records and we have them today and those records are called scriptures. If we set those guidelines aside and choose to use our own judgement and set aside God’s laws for how we should judge and make choices in this life than we are already guilty by God’s own admissions in revealed truths of the scriptures He has provided for us.
    Trying to hide behind the argument that God is the only one who has authority to judge is flawed before it begins. Why??? Because the people casting that judgement are doing so based upon the laws God has already established in those sacred records called the scriptures!!!
    Those who are trying to say that the good God fearing people casting this judgement are misinterpreting the scriptures that God has already revealed on the subject are wrong! Dead wrong, but it is you trying to defend an abominable act as acceptable, correct and normal before God.
    Hypocrisy is not taken lightly by God and those trying to pervert righteous behavior in the name of God by claiming Homosexuality or Lesbianism to be normal is nearly the most hypocritical thing in all of human nature? Is there a greater hypocrisy??? Not much.
    The design of both women and men could not have been more obvious when procreation is the subject. The two different genders and their roles were meant for each other in almost every way imaginable. The genders on their own CANNOT procreate and thus destroy the natural design and over all purposes of God and can not or will ever be approved of God.
    God has already through ancient and modern prophets revealed that such behavior and activity is an offense to God, even an abomination. Leviticus 18:22. God’s laws are the same yesterday, today and forever, people may try to come in and change what God has said but it will not change because of any person’s opinion. God did not give mankind commandments so men could pick or choose which of them we feel like doing according to our indifferent beliefs from God, God gave men the commandments because if we were ever planning on returning to our God in Heaven we would have to obey His laws! And God them to us so we could prepare to live with Him again, if we aren’t willing to do the simple stuff down here which He is even willing to forgive us from time to time if we error along the path, but then go so far as to say that His laws were wrong to begin with; do we really think we are going to be living with Him after this life? I almost laugh at the attitude of those declaring their Homosexual or Lesbian rights and claiming their defense is with God. How stupid do you think God is?
    I’ll give you a hint… He created the entire Universe, all the hundreds of billions of galaxies with in it, all the billions of stars in each of the galaxies that fill the sky at night, all the planets and all the inhabitants on every planet, the animals, all the other children He has on all of those other worlds but you think He wasn’t sure when He called Homosexuality an abomination? I think… just guessing here… but maybe it’s the people who haven’t been doing much of living God’s commandments to begin with, that are arguing that homosexuality and lesbianism is normal; I’m thinking that it just might be those people who are wrong and not the ones keeping in touch on a daily basis with God by kneeling in prayer and constantly asking for forgiveness of their sins, the ones who make it to church every Sunday and renew their covenants with God, the ones who are reading the scriptures and trying to follow what the scriptures teach rather than change what they teach. I think the ones trying to keep the laws of the land in sync with the laws of God who are humble, God-fearing, righteous servants to God almighty that are doing what is right and just!!! Not the slime and filth of Sodom and Gomorrah trying to slither it’s way back out of the Dead Sea and on into the courtroom, corrupting the laws of the land and destroying a once righteous nation!!! Those are the true culprits NOT the saints of God! And soon one of these days God is coming back to let you know who is and who is not right! Satan has got you folks who are defending Homosexuality and Lesbianism!!!

    • John

      Not everyone believe as you do and you have no right to force others to live by your beliefs. Since the 1st Amendment guarantees everyone of every faith (or no faith at all) religious freedom, your religious beliefs are have no bearing as it pertains to the law. And yeah, as far as I’m concerned, all the god stuff is completely false. None of it ever happened. Close to 2000 years ago, some folks plagiarized other religions as they wrote a fictional book that some of you all still believe and put ahead of facts, science, logic, reason, and rational thought. You’ll blatantly deny facts that have evidence to support it as you use a book that has no facts or evidence to support. There’s not really any good evidence that Jesus ever even existed. He’s a mythical figure.

      • Daniel Roybon

        Hey John when Jesus asks you what you did with your life face to face tell him what you just said in this post, ok. Because I’ll be watching.

      • John

        And no worries, I don’t believe in fairy tails. Jesus never existed. Ancient Romans kept excellent records yet they have none of Jesus. In addition to that, the bible was plagiarized from other religions far older than christianity. You can say all you want about Homosexuality not being “normal” or “natural” but there’s 1500 species that exhibit it, but there’s only one that exhibits homophobia.

        Furthermore, the medical and science community (I know, you don’t believe in facts) have all accepted that people are in fact born this way. There’s genetics that are similar amongst homosexuals as well as physical differences such as different sizes of various parts of the brain. There’s more. You have the internet, educate yourself on these topics rather than relying on your ignorant opinion.

        “Start with the all-important process whereby the religious right has lost the fight over SSM. In case after case, starting with the 2003 Massachusetts Supreme Judicial Court’s decision in Goodridge v. Department of Public Health, the courts have asked whether there is a legitimate reason for laws restricting marriage to one man and one woman. In the absence of such a reason, any prohibition is held to violate equal protection of the laws.

        These cases all have a crucial feature in common: The real reason that many Americans still oppose SSM — religious faith — is systematically left out. Because under the Supreme Court’s interpretation of the establishment clause of the U.S. Constitution, laws must have a primarily secular purpose, opponents of SSM can’t win. The other justifications they have proffered sound like lame pretext because that’s exactly what they are — makeweights offered in substitute of the real motivation.”

    • John

      And why do you bible thumpers insisted upon taking 2 sentences from the bible so literally while you ignore the other thousands of pages and interrupt them whichever way is convenient to you? If the bible was followed literally man would be extinct by now. Practically everything is a sin, everyone sins every minute of every day, and so we would’ve had to execute every person that ever existed via stoning or all the other barbaric execution methods that our “loving” god favors? You want a religious book to govern you’re life, move to Iran. It doesn’t work out so well when a country is ruled by a fictional religious book.

      • Daniel Roybon

        John who ever said that I ignore the other thousands of pages of scriptures in the Bible? As a matter of fact who said any of those following what the scriptures teach are ignoring what the scriptures teach? You’re the one who said that John. Do you even know what the scriptures teach? You sure don’t sound like it, you’re the one calling it fiction and denying the power there of, not me or the other God fearing people in this country. John I also hate to break the news to you but you are the one interpreting scripture however it suits yourself by ignoring what the scriptures quote and ignoring them altogether. Another thing you are living in a country that was established by God fearing men who believed in the Bible very firmly and if you hate the idea of living in a country that was established on the concepts of the Bible then you are the one who needs to pack up your junk and get out!

      • Jayson Daniels

        Incorrect. Our country was founded by people of various faiths trying to escape religious persecution. In 1776, Christian population was 17%. That grew and peaked in the 1950’s to around 80%. Our founding fathers intended everyone of every faith (or no faith at all) to be entitled to religious freedom. That’s all faiths Daniel, not just your own. Furthermore, religious freedom doesn’t grant you the right to force others to live by your beliefs and use the government as a vehicle to promote your religion as is so common these days. Now I was Christian (Presbyterian) until I grew up and realized it was all garbage. If you want to believe that, that’s fine… More power to you. But I don’t have to live by that, and you can’t force me. Now… Moving on… In the 1950’s is when the wall of separation of church and state started getting torn down and the rise of religious tyranny in the US. Prior to that, our Pledge of Allegiance, and our money made no mention of God. The constitution is god free. Our founding fathers intended it that way.

        Now, you say you follow the scriptures literally and that’s not possible. If man followed the bible literally from cover to cover we’d all be extinct by now because everyone would’ve had to have been executed by stoning or any other one of our “loving” god’s preferred methods of execution. If you follow the bible literally, practically everyone sins every moment of everyday and judgement is supposed to be god’s job, not yours. So if SSM is a sin, that’s between those people and god. They’re the one’s that have to answer at the gates of heaven and is of none of your concern. But anyways, I don’t believe any of that is true. Up to now, the bible has had a 0% accuracy rating and everything thus far has proven to be wrong. And yet, some people will still deny science, logic, and rational thought and demand that their bible is fact. And you’ll forget about that whole love thy neighbor, judge ye less ye be judged, “He will answer them, ‘I can guarantee this truth: Whatever you failed to do for one of my brothers or sisters, no matter how unimportant [they seemed], you failed to do for me.”

        So feel free to live by your beliefs, stop trying to force others to live by them. That’s the most un-American thing someone can do and that’s the only real reason that anyone is attacking religion is because a few of you go around trying to force others to live by your beliefs. If you don’t want your faith to get attacked, then don’t use your faith to attack others. If you’re using your bible as a weapon, you’re using it wrong.

        Christian’s act like they invented marriage and own it. They did not. Marriage in some form or another dates back to the Cro-Magnons. Every religion or culture had some form of marriage and some of them always did allow for SSM. So it’s not us redefining marriage, Christians redefined it and many times I might add.

        Now back to the religious freedom thing, it applies to everyone of every faith and this is a secular nation whether you like it or not. You can believe and worship as you see fit and so can I. Government can legally restrict that, nor can it promote one religion over another.

        “As the Government of the United States of America is not, in any sense, founded on the Christian religion,—as it has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen [Muslims],—and as the said States never entered into any war or act of hostility against any Mahometan [Mohammedan] nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.” Treaty of Tripoli – John Adams 1797

        “Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State.” – Thomas Jefferson

  • Jack

    I don’t even kmow why I’m even bothering arguing with the religious trolls. If it were possible to reason with religious people, there wouldn’t be any religious people.

  • Daniel Roybon

    Congratulations, you have all confirmed the exact reason that Jesus will have to return to the earth and clean house. Mainly so all of your idiotic nonsense will be silenced forever you are all so far from the truth that even Satan won’t take you when the time comes.

    • John

      And one more thing, before you come out into society and attack consensual loving adult relationships, clean your own house first. Why don’t you put your effort towards riding your churches and temples from pedophilia. I have a really hard time taking you all serious when you tolerate and cover up the molestation of children but then cast stones at adults for nothing more than who they love. Your priorities are completely upside down and that behavior truly is sick.

      • Daniel Roybon

        John how do you know my house isn’t clean? Have you come over recently? People consenting in immorality are wicked evil and doing iniquity in the sight of God, even committing abominations and you don’t like hearing it said that way then please blame God when you stand at the bar of justice on the Last Day to be judged for your actions during this mortal existence. I personally don’t know anyone who commits crimes of pedophilia, I know that I personally have no such problems, nor have ever had such problems. I am very sorry if you know people with such problems or if you yourself have that problem there is always time to repent before the end comes. Again you say it is I who is casting stones it is not me but it was God who called it an ABOMINATION NOT ME!!! And He did so a long, long, long time ago and to try and put God’s words in my mouth is awfully wicked of you! I am only reiterating the words of my God! Leviticus Chapter 18 clearly explains these things and you can pretend and try remaining ignorant all you want but God’s laws are before all of us. No one, no not one person on this earth is completely ignorant of God’s revealed laws, there is more than enough truth in the Bible for people to know how they should behave. No one’s going to get off simply by pretending God isn’t there when that day comes. Good luck to you, I can’t imagine a great deal of mercy being dealt out to those who condemn the people who try their best to follow God but you never know…maybe God might be even more merciful than the recorded scriptures say but then again the scriptures don’t mention much mercy to those who ridicule and attack the saints of God.

      • John

        Daniel, what part of me not believing in your religion do you not understand? What part of the 1st Amendment of the US Constitution do you not understand? We are not and never where a christian nation. We are not a theocracy. If you want to live in a country ruled by a religious book, move to Iran. I will help you pack.

        Your house is not clean. It’s a well known fact that pedophilia runs rampid through various religions and is typically covered up. But I gues you think it’s god’s will that those children are raped, huh? If you think homosexuality is a bigger problem than that, then you you really have your prioritues backwards. If I’m wrong, and there is a god… I’m confident that he’ll have less issue with me not believing in him than he’ll have with the christians that condoned , covered up, and supported child molestation.

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