On Thursday, the 10th Circuit Court of Appeals will convene in Denver to hear the state of Utah’s appeal of Judge Robert K. Shelby’s decision to strike down Amendment 3 as unconstitutional.
The hearing will not only test the merits of Utah’s arguments to reinstate its ban on same-sex marriage, but it will also provide a high-profile opportunity for the Utah Attorney General’s Office to demonstrate how lawyers fulfill their duties to the court and the public.
Lawyers must be truthful. Rule 3.3(a) of the Utah Rules of Professional Conduct, which defines a lawyer’s duty of candor to the court, states that “[a] lawyer shall not knowingly make a false statement of fact or law to a tribunal.” Rule 4.1 also mandates that “[i]n the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.”
The Utah Supreme Court’s Advisory Committee note then explains that “[a] lawyer is required to be truthful when dealing with others on a client’s behalf.”
To its credit, the Attorney General’s Office provided a laudable example of its commitment to the duty of candor during the summary judgment proceedings against Amendment 3. When asked by Judge Shelby whether Utah’s marriage laws operate to deprive same-sex couples and their families of the same dignity, respect, and stature afforded to officially-recognized opposite-sex family relationships, the Attorney General’s Office agreed and said, “There’s no question that the benefits and advantages of marriage do not apply to those who are not married.”
This stipulation was truthful, but it was also legally significant because the U.S. Supreme Court last year struck down the challenged section of the Defense of Marriage Act after observing that DOMA burdened and demeaned same-sex married couples and “humiliate[d] tens of thousands of children now being raised by same-sex couples.”
Given Utah’s candid acknowledgment that Amendment 3 harms gay couples and their families, Judge Shelby applied the logic and reasoning of the U.S. Supreme Court’s decision to invalidate Utah’s law excluding gay couples from the institution of marriage.
The Utah Rules of Professional Conduct also require a lawyer “to correct a false statement of material fact or law previously made to the tribunal by the lawyer.” Thursday’s hearing will afford the Attorney General’s Office an important opportunity to comply with this obligation.
In its opening brief, filed on Feb. 3, Utah stated that “same-sex parenting arrangements are less effective than married biological mothers and fathers in producing positive outcomes in the lives of their children.”
For this proposition the state relied on a paper published by Mark Regnerus, which the state described as “finding significant differences between children raised by married mother and fathers and those raised in other family structures, including those raised by same-sex couples.”
One month after Utah filed its brief, Regnerus testified during a trial in Michigan. Under direct examination, Regnerus conceded that “what we have learned is that it’s possible to grow up in a same-sex household and the children be fine.” In addition, Regnerus acknowledged under oath that his study included only two cases where a same-sex couple raised a child throughout childhood, and the outcomes for those children “looked pretty good.”
Thus, contrary to the state’s representation in its opening brief, Regnerus’ study does not offer evidence of any difference — let alone any “significant differences” — in outcomes between children raised by same-sex couples and those reared by opposite-sex couples.
Thursday’s hearing will give the Utah Attorney General’s Office the forum not only to correct the record about the Regnerus study but also to accurately represent the state of social science on same-sex parenting.
As the American Sociological Association noted in its amicus brief, “The social science consensus is clear: Children raised by same-sex parents fare just as well as children raised by different sex parents.” Moreover, “[t]he overwhelming scientific evidence shows that same-sex couples are equally capable of generating positive child outcomes.”
The Utah Attorney General’s Office has the difficult task of trying to defend a discriminatory law on Thursday. It also has both the opportunity and obligation to act in the finest tradition of our professional by continuing to satisfy its duty of candor to the tribunal.
We hope that Thursday’s hearing will be remembered for lawyers doing their duty and telling the truth.
Paul C. Burke was the Utah State Bar’s Pro Bono Attorney of the Year in 2012; John W. Mackay is a litigator with more than two decades of experience; and Brett L. Tolman served as U.S. attorney for Utah from 2006 to 2009.