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(Scott Sommerdorf | The Salt Lake Tribune) Moudi Sbeity, center, and Derek Kitchen, right, arrive with their attorney Peggy A. Tomsic at U.S. District Court Wednesday morning, Dec. 4, 2013. Judge Robert J. Shelby ruled on Dec. 20 that Utah's ban on same-sex marriage is unconstitutional. The man on the right is unidentified. The woman at left is unidentified.
Same-sex couples tell court ban has ‘cemented’ discrimination
Marriage » Attorneys for three couples ask court to uphold district judge’s ruling.
First Published Feb 26 2014 03:21 am • Last Updated Mar 31 2014 04:14 pm

Attorneys representing three couples say in a new brief that Utah laws prohibiting same-sex marriage have "cemented discrimination against same-sex couples and their children into the state’s most basic charter," denying those families not only the protections that flow from civil marriage but also the "common vocabulary of family life and belonging" that other Utahns may take for granted.

In a 118-page response filed late Tuesday evening with the 10th Circuit Court of Appeals, the attorneys argue Utah’s 2004 constitutional amendment barring same-sex marriages and recognition of marriage or other legal unions performed elsewhere stigmatizes the couples’ relationships, leaving them with "no way to publicly express or formalize their commitment to one another" or assume duties and responsibilities of shared lives.

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Nearly every aspect of the couples’ lives is touched by the exclusion, from their ability to access state and federal benefits to being able to care for one another in times of illness and crisis, the attorneys said.

"No matter how deeply they care for one another or how long they have stood by one another, for better or worse, in sickness and in health, Amendment 3 treats plaintiffs and other same-sex couples as legal strangers to one another," the brief states.

The ban tells them that "they are not, and never can be, true families," the attorneys wrote.

The brief was filed on behalf of three couples who challenged Utah’s ban on same-sex marriage. Those couples are Derek Kitchen and Moudi Sbeity; Kate Call and Karen Archer; and Kody Partridge and Laurie Wood. U.S. District Court Judge Robert J. Shelby ruled in their favor Dec. 20, finding Utah’s ban on same-sex marriage is unconstitutional.

The state appealed. In its opening brief filed Feb. 3, state attorneys based their defense of Amendment 3 on claims they said were grounded in the long-term interests of children. The state said the ban on same-sex marriage protects a "child-centered institution" that promotes Utah’s interest in encouraging stable families and responsible procreation.

More than two dozen individuals or groups, including The Church of Jesus Christ of Latter-day Saints and 81 Republican Utah lawmakers, filed amicus briefs in support of the state’s position.

Amicus briefs backing the couples’ position will be filed over the next week. The state also has until March 4 to file its final response. The 10th Circuit Court will hear oral arguments in the case April 10.

The three couples are being represented by attorneys Peggy A. Tomsic, James Magleby, Jennifer Fraser Parrish as well as Kate Kendall, Shannon P. Minter and David C. Codell from the National Center for Lesbian Rights.

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"This case is about one of our Constitution’s most basic principles — the requirement of equality under the law," Tomsic said in a statement. "The couples in this case are upstanding, responsible members of the Salt Lake City community who simply wish to have the same ability to protect their families as other Utah citizens. The law should not treat people differently simply because of who they are."

In their brief, the couples’ attorneys said Utah’s law has the same effect as the federal Defense of Marriage Act struck down last summer by the U.S. Supreme Court: it places same-sex couples and their families in a separate and unequal status.

The state claims that treating same-sex couples’ families equally might lessen interest of opposite-sex couples in marrying and having children, an argument the attorneys said was expressly rejected by the Supreme Court in its DOMA ruling in favor of the need to protect "existing families and existing children."

"The court struck down DOMA because that statute burdened, ‘in visible and public ways,’ same-sex couples’ personal, private and constitutionally protected choices to marry," the brief states.

The decision also made clear that when weighing whether a law disadvantages same-sex couples, courts may not "blindly defer to hypothetical justifications" offered by a state but must consider the purpose underlying the law and the actual harm it causes.

Under any level of constitutional scrutiny, Amendment 3 fails that test, the attorneys said.

In 2004, Utah became one of the first states to adopt a same-sex marriage ban. At the time, gay and lesbian persons were portrayed in a negative light in highly charged political campaigns, the brief states. Proponents of the measure, which was approved by 66 percent of the registered voters who participated in the election that year, said among other things that the amendment was needed to avoid blowing "out the moral lights around us."

"The legislative record and the circumstances surrounding the enactment of Utah’s exclusionary marriage provisions — as well as the laws’ plain language and stated intent to prevent same-sex couples from gaining access to marriage or any other type of family protections — demonstrate that their purpose and effect are to impose inequality on same-sex couples and their families," the attorneys argue.

Every court that has considered such bans following last summer’s decision in the DOMA case has concluded the laws are unconstitutional, they point out. Those states include Utah, Ohio, Oklahoma, Kentucky and Virginia.

On Wednesday, a federal judge in Texas declared that state’s ban on gay marriage was unconstitutional, but left it in place until an appeals court can rule on the case.

"Full citizenship and limited government — on which our democracy rests — are impossible when fundamental rights such as the freedom to marry are arbitrarily denied to one group of people," the brief states.

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