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(Steve Griffin | The Salt Lake Tribune) Same-sex marriage supporters gathered on the steps of the Utah State Capitol in Salt Lake City to rally support for their cause Tuesday, January 28, 2014.
State makes it all about kids in brief against same-sex marriage
Utah » Children need to be “raised by their biological mother and father within a stable marital union.”
First Published Feb 04 2014 03:07 am • Last Updated Mar 04 2014 06:14 pm

The state of Utah offered a bold defense of its ban on same-sex marriage in a brief filed late Monday evening with the 10th Circuit Court of Appeals, arguing its prohibition of such unions is all about the long-term interests of children.

Utah has chosen a definition of marriage that is "principally a child-centered institution, one focused first and foremost on the welfare of children rather than the emotional interests of adults," the state said. "And by reinforcing that understanding, the state gently encourages parents to routinely sacrifice their own interests to the legitimate needs and interests of their children."

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That definition is not designed to demean other family structures "any more than giving an ‘A’ to some students demeans others," the state said.

But redefining marriage in "genderless" terms, as sought by plaintiffs challenging Utah’s laws, would undermine the state’s objective in promoting stable families and likely result in not only reduced reproductive rates but fewer children being raised in the ideal environment provided by biological, opposite-sex parents, the state said.

The state filed the 120-page brief at approximately 11:30 p.m. Monday, beating its deadline by 30 minutes.

Seven attorneys, led by newly hired outside counsel Gene C. Schaerr, crafted the brief.

Utah Attorney General Sean Reyes issued a statement Tuesday that said the state’s defense of the ban is driven by duty, rather than any political motives. He said attorneys and staff working on the case have varied personal beliefs about same-sex marriage, but are united in respecting an obligation to defend the law.

"The legal question at issue is not the fundamental right of same-sex couples to enter into exclusive and permanent relationships, raise children, or bequeath property at their death," Reyes said, since Utah law already provides those rights. "The constitutional question is whether it is reasonable for Utah’s citizens to believe that a child benefits most from being raised by his or her biological mother and father in a permanent relationship, and that such relationships should therefore be encouraged through recognition as marriages."

The Sutherland Institute, a conservative policy think tank that has been an ardent defender of the state’s position, called the brief "brilliant" and the state’s case "impenetrable."

"The people of Utah can have confidence that their overwhelming majority view of marriage and family has been well represented," said Paul Mero, Sutherland president, adding that the brief "sets the new legal standard in defense of the state interest in traditional marriage and the natural family."


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Attorneys for the three same-sex couples who are challenging Utah’s ban have until Feb. 25 to file a response, and the state’s final filing must be submitted by March 4.

Oral arguments are scheduled for April 10 in Denver. The three-judge panel that will hear the case — as well as an appeal from the state of Oklahoma involving a similar ban — will be picked 10 days before the hearing.

Cliff Rosky, board chairman for Equality Utah, called the state’s arguments a "disappointing" rehash of stereotypes and disproved studies about gay people and same-sex parents.

"The arguments in the state’s brief are the same arguments that the Supreme Court rejected last summer," Rosky said. In striking down the federal Defense of Marriage Act, the court found that the statute "actually harmed children, instead of protecting them."

"Amendment 3 has the same affect," Rosky said.

In its brief, the state argued that U.S. District Court Judge Robert J. Shelby’s Dec. 20 decision overturning Amendment 3 misinterpreted legal precedents in two prevailing cases — one that upheld the right of states to define marriage and, in the United States v. Windsor case, that the federal government cannot interfere with that state decision-making authority.

Together, those opinions allow for a "diversity of outcomes" rather than a "uniform national answer" on marriage rights, the state said.

The state also said Shelby erred in finding same-sex couples sought access to a fundamental right; that that right is implicit in notions of liberty and autonomy; that history and tradition were "insufficient reasons" for a ban on gay marriage; and in comparing Utah’s marriage laws to anti-miscegenation laws.

"Anti-miscegenation laws were odious measures that rested on invidious racial discrimination," the state said. "Defining marriage as the union of one man and one woman may be controversial in today’s political climate, but it is hardly invidious."

Limiting marriage to one man and one woman, as Utah and 32 other states do, fulfills a compelling governmental interest rooted in tradition, social science and religion, the state said.

The attorneys said that while the state endorses no religious beliefs about marriage, its laws are supported by approximately 20 of the 25 largest faith communities in Utah who "understand marriage and sexuality as gifts from God" and primarily designed to bear and raise children.

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