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Utah: State has 'sovereign' right to bar same-sex marriages

Published August 14, 2013 2:15 pm

Gay marriage • State attorneys respond to lawsuit arguing Amendment 3 is unconstitutional.
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Utah has a "sovereign right" to define and regulate marriage and a constitutional amendment that bars recognition of same-sex marriage enshrines that right, state attorneys say in a brief filed in U.S. District Court.

The state disputes assertions by three couples who filed a challenge to Amendment 3 in March, including the claim that the amendment was aimed at furthering privately-held views that same-sex couples are immoral and inferior to heterosexual couples.

The state's 13-page answer filed in federal court Monday says marriage between a man and a woman is a "constitutionally protected fundamental right and/or liberty interest." While it is true that "unmarried couples or groups of any kind — heterosexual, homosexual, polygamous, etc." are denied certain rights available to married couples, their access to those rights is not protected under the U.S. Constitution, the state says.

The state asks U.S. District Judge Robert J. Shelby to dismiss the complaint.

Utah Pride Center officials, objecting to the state's response, delivered copies of the Constitution and a related legal brief from the center to the offices of Gov. Gary Herbert and Attorney General John Swallow on Tuesday.

Valerie Larabee, executive director, and Nikki Boyer, board president, said they were following one of the rules from Stephen Covey's The 7 Habits of Highly Effective People: Seek to understand.

"We don't understand and hope to," Larabee said. "Our intention is on having the [lesgian, gay, bisexual and transgender, or LGBT] community voice heard."

Larabee said she does not understand the attorney general's assertion, in the state's filing, that he could neither confirm nor deny any knowledge of Utah laws that denigrate LGBT Utahns.

"They also deny any knowledge of LGBT citizens being the target of hate crimes," Larabee said.

"This response could be characterized as shockingly incompetent, especially for them not to know about Utah's laws since they have the responsibility to execute and enforce these laws," she said.

State attorneys point out that same-sex marriage has never been recognized in Utah, which sanctions only the legal union of a man and a woman. At least 30 other states have similar bans.

Utah's public policy also prohibits recognition of same-sex marriages performed elsewhere, the state acknowledges.

Regulating marriage is a legitimate governmental interest, the filing states, noting that the state's law does not prevent gays or lesbians from marrying — it simply does not afford their unions any recognition. In addition, the restriction is not gender-based since it applies equally to both males and females, state attorneys argue.

Salt Lake County Recorder Sherrie Swensen, also a defendant in the lawsuit, filed a companion answer saying she has a "ministerial duty" to abide by the state's laws and "has no discretion regarding the issuance of marriage licenses."

Utah voters approved Amendment 3 in 2004 and it took effect on Jan. 1, 2005. It was approved by 66 percent of the voters who participated in the election.

In their complaint, the three couples claim the amendment discriminates against them and denies them basic, fundamental rights. The plaintiffs are Karen Archer and Kate Call, who legally married in Iowa in 2011; Derek L. Kitchen and Moudi D. Sbeity; and Laurie Wood and Kody Partridge. The two unmarried couples sought a marriage license in Salt Lake County on March 22, but Swensen refused to give them one.

Restore Our Humanity is funding the lawsuit, which also has received financial support from Utah-based Overstock.com.

The couples say Utah's law is based on unfounded moral views that are akin to justifications once used to support racist laws. Being unable to marry in their home state or to have marriages conducted elsewhere recognized here deprives them of personal and public affirmations that accompany marriage, they argue. It also denies them legal recourse in child custody, inheritance and spousal medical decision matters, they add.

The Utah lawsuit was filed on the eve of historic debate in the U.S. Supreme Court over two gay marriage cases. In June, the court struck down the Defense of Marriage Act (DOMA), which denied federal benefits to same-sex spouses in states that permit gay marriage. In the other ruling, the court left in place a trial court's declaration that California's Proposition 8 is unconstitutional; that allowed same-sex marriages to resume in that state.

Both the LDS Church and the Utah Pride Center participated in filing amicus briefs in the cases; the center's version was the brief center officials delivered to Herbert and Swallow.

Clifford Roskey, a University of Utah law professor and Equality Utah board member, said legal reasoning in the majority decision in the DOMA case placed Utah's Amendment 3 in jeopardy. That language focused on a two-tier marriage system that demeans same-sex relationships and "humiliates tens of thousands of children" in such families.

Swallow said the pair of rulings strengthened the right of states to regulate marriage, though both he and Herbert said discrimination has no place in society.

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