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In a counter to the state’s argument that same-sex marriage is a recent innovation that is not "deeply rooted in the nation’s history and tradition," the attorneys respond: "When analyzing cases involving fundamental rights, this court has not held that the contours of a fundamental right can be limited based on who seeks to exercise it or on historical patterns of discrimination."
What the plaintiffs seek is not a new right, as the state argues, but rather an existing fundamental right, they said.
The attorneys also criticize the state’s claim that Shelby’s decision is likely to be reversed based on a "hodgepodge of articles that purportedly show that same-sex parents are inferior to opposite-sex parents."
That claim, the attorneys said, is false and does not resolve the constitutional issue presented in the case.
"To the extent benefits and protections of marriage encourage opposite-sex couples to marry before having children, those incentives existed long before Utah’s discriminatory laws were enacted, and they would continue to exist if those laws were struck down," they said. "Excluding the children of same-sex couples from those benefits causes severe harm to those children, without providing any benefit to the children of opposite-sex parents."
It also is "remarkably similar" to justifications once made for penalizing "so-called ‘illegitimate’ children by depriving them of critical legal protections."
"The fact that same-sex couples do not engage in unplanned procreation does not provide a rational basis for excluding married same-sex couples from all of the other protections provided to married couples under Utah law," the attorneys said.
Unlike speculative harms articulated by the state, including the administrative and financial burden of potentially having to "unwind" marriages, the harm to same-sex couples and their children because of the marriage ban is undisputed, the attorneys said.
As the state itself acknowledged, it is unclear whether marriages would be invalidated if Shelby’s decision were ultimately reversed — a potential outcome Utah argues warrants a stay because of the harm it would inflict on same-sex couples who married.
But the state "cannot simultaneously concede that being stripped of one’s marital status causes profound, irreparable harm and urge the court to inflict that very injury on the married respondents and other married same-sex couples," they said.
And an initial survey of state officials by Utah Gov. Gary Herbert’s office found the impact of complying with Shelby’s order will be minimal, they point out.
Most cases relied on by the state in its stay application are either off point, they said, or were decided decades before "the wave of unprecedented state statutes and constitutional amendments" barring marriage rights to same-sex couples.
The attorneys also note that while Shelby’s ruling is the first post-Windsor decision to strike down a state marriage ban, same-sex marriage is currently being debated in more than 25 state and federal lawsuits in 15 states and suggest it may be premature for the high court to take up the issue before at least some appellate courts tackle it.
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