Utah says same-sex marriage ruling a “judicial wrecking ball”

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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.”

Read the state of Utah’s reply brief here.

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.

In their response to Utah’s appeal, the lawyers for three gay couples who sued the state for the right to marry, argued that Amendment 3 expressly targeted same-sex couples.

“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.

See more coverage of Amendment 3 and same-sex marriage in Utah here.

Read all the court filings in the Amendment 3 appeal here.


  • wayne

    Soon, even the Mormon Cult, which rules Utah with an iron fist, will be forced to kneel before this nation’s Civil God, the Constitution of the United States of America……

  • JN

    Boy, Schaerr is desperate… grabbing at straws and including every ill-conceived thought and contradictory, bizarre rationale that pops into his small, foolhardy mind.

  • russojoe205000

    I hope that the courts up hold traditional marriage
    If they want to have a UNION then that’s fine but marriage should be held between a MAN and a WOMEN only.

    • JN

      I’m sure you’ve heard the phrase “traditional marriage” somewhere before and thought: “I like the sound of that!”

      I’m sure you’ve read that phrase in a Facebook post and clicked the corresponding [Like] button to show your friends you have an important opinion.

      I’m also sure you are quite proud of yourself for flaunting your tolerance openly, after all, you did use the trendy word “union” from a decade ago or more.

      And I’m quite sure you are patting yourself on the back for having what you think is a well-structured opinion, else you likely wouldn’t have posted a comment to the article; but, it’s clear you don’t have any understanding of the history of marriage and its traditions around the world – both in antiquity and modern times.

      What you claim “should be” is historically and globally untraditional; what you are hoping the courts do is to merely uphold *your* non-traditional definition of marriage.

      I’m afraid your definition of marriage hasn’t been accepted by the majority of humans… ever; and you are attempting to impose your unpopular minority view onto the majority.

      I’m also afraid that not only are you and your ilk on the losing side of history, you are on the losing of the present; I hope, for your sake, that you don’t continue to be such losers in the future.

  • Robert Garnett

    God created Males and Females, and blessed Females with privilege of carrying his Spirit Children, with-in their on bodies while the Spirit children develop human bodies. God ordained Marriage as the Union of a Male and a Female, for the purpose of having children and staying together to provide for their children. Society has cheapened Marriage to become a thing of convenience and sexual intercourse a game.

    Some of the things homosexuals are asking for make since, like being able to get medical information, and some legal issues, but these could be taken care of by laws.

    There will NEVER be Marriage Equality, as to be unless one of the Partners became a totally function Male and the other becomes a totally functioning, or both partners have all reproductive parts removed, and females have a tube attached where they can pee standing up. Without reproductive parts, there would be no sex drive, people could just have a replacement body

    cloned, and transport their minds into the new body. Their would be no Spirits as this would not be an arrangement God would put his Spirit Children in.

    Some people are so wrapped up in themselves that they do not want to be bothered with children, and others do not want to be tied to one person.

    • sk911

      This is, quite possibly, the stupidest thing I have ever read. Ahs I spend a lot of time on the internet, so I guess congratulations to you?

    • JN

      Religion, like an illicit drug, eats away at the mind. Robert’s religious rambling demonstrates how his brain has become Swiss cheese for Jesus, and it is a great example of the old PDFA campaign: “This is your brain on drugs. Any questions?”

    • JN

      Howard, the Supreme Court is not the least bit concerned with the words contained within your book of grim fairy tales.

  • justin

    the state of utah will never win its fight to continue hate and discrimination! also a new study came out saying people will belong to a church but if what they say or tell the people is doctrine does not jive with how they feel they will still be members of that church but not follow that exact doctrine. this means that the churches actually don’t have a true hold on the people any more. the state of utah is controlled by the mormon church.

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