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And excluding same-sex couples from marriage neither furthers a legitimate government interest nor is there a rational connection between such a ban and a state interest in procreation or parenting, the attorneys said.
The plaintiffs — among them a retired physician, a university professor, small business owners and a middle school teacher — are not seeking a new right, but rather to make the same "legally binding commitment to one another and to join their lives in a way" that opposite-sex couples do and that must be "respected by the government and third parties."
New poll on LGBT acceptance
A new national survey reveals growing acceptance of same-sex marriage and other LGBT issues across all religious, political and age groups. The same poll also shows that most Americans see three major religious groups — the Catholic Church, Mormon church and evangelical Christian churches — as “unfriendly” toward gay people. See the story at sltrib.com.
As with any fundamental right, the "freedom to marry is defined by the substance of the right itself, not the identity of the person asserting it — let alone the identity of the persons who have historically been denied it," the brief states.
Yet the state argues "formalistically" that because same-sex couples never have been granted marriage licenses, they should not get them now, the attorneys said.
States that defended marriage restrictions in the past "all believed that there were valid reasons for them — as did the majority of voters at the time. That did not stop the Supreme Court from invalidating them under the Constitution," the attorneys said.
The brief lambastes the state’s claim that its defense of Amendment 3 is based on a "child-centric" view of marriage, saying that denigrates the "interests of adults" in choosing whether and whom to marry — an interest the Supreme Court has held are central to individual autonomy under the Fourteenth Amendment, the attorneys said.
"Marriage is not a zero-sum game that pits the needs of children against the desires of adults," the attorneys said. "To the contrary, marriage benefits the health and wellbeing of both adults and children in numerous ways, as the nation’s leading mental health organizations have emphasized."
And children of both same-sex and opposite-sex couples "benefit to the same degree, and in the same ways, from having parents who are married."
In fact, they said, excluding same-sex couples from marriage "would seem to undermine the child-centric view, because that exclusion fences out one segment of society and tells them that getting married and having children is not a life path that is open to them."
The attorneys said a host of national organizations have concluded that children raised by same-sex parents are as well adjusted as children raised by opposite sex parents, refuting many of the experts and studies cited by the state.
But marriage is not only about raising children, they argue. It’s about sharing the joys and sorrows of life and remaining companions long after children are grown.
And the ban subjects only same-sex couples to a requirement of "natural procreative ability" that is not imposed on opposite-sex couples, whether they are infertile, elderly or simply do not want children.
The "illegitimacy" of the state’s asserted interest is revealed by the fact it does not penalize any other class of "non-optimal" parents, such as drug addicts or individuals convicted of abusing or molesting children, by prohibiting them from marrying.
The attorneys said the state’s assertion that redefining marriage would be a "recipe for social and religious strife" is "deeply offensive" and "repugnant to our constitutional tradition."
"Constitutional rights would be hollow indeed if courts were precluded from upholding them when some part of the population might be upset," they said.
The attorneys said the state has not shown how allowing same-sex couples to marry would negatively affect religious beliefs about the institution. "The courts are available to remedy them" if infringements of religious liberty occur, they said.
The attorneys said Utah’s "anti-recognition law" is especially harmful to same-sex couples such as Archer and Call who have valid marriages issued by other states. Failure to recognize those marriages is contrary to a "firmly rooted doctrine" that allows married couples to reasonably expect to travel throughout the country and know that "the simple act of crossing a state line will not divest them of their marital status."
That "place of celebration" rule has existed in Utah for nearly a century and even allowed the state to recognize interracial marriages performed elsewhere when they still were prohibited by the state, they said.
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