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Three couples file challenge to Utah's ban on same-sex marriage

Published March 26, 2013 9:58 am

Lawsuit • They say 8-year-old amendment prohibiting gay unions denies their basic rights.
This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

On the eve of a historic debate in the U.S. Supreme Court over gay marriage, three couples in Utah filed a lawsuit asking a federal judge to declare unconstitutional any law in the predominately Mormon state barring same-sex marriage.

The complaint filed Monday in U.S. District Court for Utah says a voter-approved amendment to the state's constitution, in place since 2005, discriminates against and denies gay and lesbian citizens access to marriage and thus to what the U.S. Supreme Court held in Loving v. Virginia, an interracial marriage case, is a fundamental, basic right.

The U.S. Supreme Court is poised to hear cases on Tuesday and Wednesday about the constitutionality of laws that recognize marriages only between a man and a woman. On Tuesday, it will consider California's Proposition 8, which was approved by voters in 2008 but later declared unconstitutional by a U.S. District Court judge and the federal appeals court in San Francisco. On Wednesday, the court will consider the Defense of Marriage Act of 1996, which prohibits gay and lesbian married couples from receiving the same federal benefits afforded heterosexual couples.

In the Utah case, the six plaintiffs ask the court to find that the state's Amendment 3 violates the 14th Amendment to the U.S. Constitution and stop it from being enforced. In addition to depriving residents of access to state-sanctioned marriages, the law violates the rights of same-sex couples who were legally married in other states, the complaint says.

Among those: plaintiffs Karen Archer and Kate Call, who were legally married in Iowa. Other plaintiffs in the lawsuit are Derek L. Kitchen and Moudi D. Sbeity, and Laurie Wood and Kody Partridge; both of those couples are in long-term, committed relationships.

Restore Our Humanity, described on its website as a "group of Utah citizens who embrace equality for all," is backing the court challenge and selected attorneys Peggy A. Tomsic, James E. Magleby and Jennifer Fraser Parrish of Magleby & Greenwood to represent the plaintiffs.

The lawsuit names Utah Gov. Gary Herbert, Attorney General John Swallow and Salt Lake County Clerk Sherrie Swensen as defendants. The complaint says Kitchen and Sbeity applied for marriage licence from Salt Lake County on March 22 but Swensen refused to give them one; Wood and Partridge applied for a license on Monday and also were turned down.

"As a result of Amendment 3 and the Marriage Discrimination Statutes, those plaintiffs are barred from marrying the individual they wish to marry," the lawsuit says.

The complaint, assigned to U.S. District Court Judge Robert Shelby, notes the "long and painful history of societal and government-sponsored discrimination" that gays and lesbians have faced in the U.S. and says Utah is among states that have enacted laws stripping them of rights afforded to other citizens. Like Utah, 13 other states have amended their constitutions to limit marriage to a man and a woman.

Utah's Amendment 3 is designed to strip gays and lesbians of federal constitutional protections and state protections and rights that apply to all other citizens, the plaintiffs argue.

It has furthered unfounded "privately held moral views that same-sex couples were not moral and were inferior to heterosexual couples," the complaint states. "These are the same types of justifications that were used to advance and preserve racist laws, directed against non-white minorities, such as laws banning interracial marriage."

Nine states and the District of Columbia currently allow same-sex marriages, but gay and lesbian couples married elsewhere — unlike heterosexual couples — are unable to have those unions recognized in Utah.

Being unable to marry or to have their marriages recognized deprives gays and lesbians of personal and public affirmations that accompany marriage, the lawsuit states. It also denies gay men and lesbians legal protections in child custody, inheritance and spousal medical decision matters and perpetuates the stereotype that they are not capable of forming long-term loving relationships or of being good parents.

In a press release issued Monday evening, Restore Our Humanity hailed the action, saying that, "Although there has recently been an awakening of awareness as to the plight of gay and lesbian citizens, the basic human right to equality should not have to wait for the now-inevitable transformation of our society."

brooke@sltrib.com

Twitter: @brooke4trib