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Marriage farce

Published August 17, 2013 1:01 am

Utah's argument is just silly
This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

"History repeats itself, first as tragedy, second as farce." — Karl Marx

For tragedy, see the millennia of mistreatment of homosexual people who have been hated, killed, forced to live lives of falsehood and denied the basic human right to formalize their chosen unions.

For farce, see the state of Utah's legal argument in defense of its claim that it need not recognize same-sex marriages, even those performed in states where they are recognized.

Utah, like many of the states that have not already recognized same-sex marriage, is being sued for discrimination. Such suits are encouraged by the recent U.S. Supreme Court rulings that struck down the federal Defense of Marriage Act and that allowed a lower court's ruling invalidating California's ban on gay marriage — aka Proposition 8 — to stand.

Three Utah couples are challenging the state's denial of marriage licenses and seeking to overturn the provisions of the state constitution that restrict marriage only to a man and a woman.

In reply, Attorney General John Swallow Monday filed a response to the suit, on behalf of himself and Gov. Gary Herbert. It contains the ridiculous — but, sadly, not novel — argument that banning a homosexual from marrying a person of the same sex is not discrimination, because heterosexuals are also banned from marrying a person of the same sex.

It is a sober judge indeed who will be able to resist the urge to guffaw at that claim.

The rest of the filing hangs on the idea that Utah has a "sovereign right" to regulate marriage within its borders. And, to a certain extent, it does, as do all states.

But the sovereign rights of states are limited. They cannot engage in unfounded acts of discrimination that violate the constitutional rights of individuals, especially in the absence of what lawyers call "a compelling state interest" for treating some people differently than others.

As an increasing number of courts at all levels have found, denying state recognition to same-sex marriages serves no purpose other than to belittle and degrade a certain class of people. Just as states may not, for example, deny legal recognition of interracial marriages, or marriages of people who will not or cannot reproduce, they may not deny recognition to same-sex couples when both are consenting adults.

The days of bans on same-sex marriage in the United States are numbered. Instead of doing everything it can to look foolish in the process, Utah should start figuring out a face-saving way to deal with that fact.