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Op-ed: Utah Invokes pre-Civil War notions to fight gay marriage

Published December 7, 2013 8:18 pm

This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated.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.

By paul c. burke

and brett l. tolman

Just days after our nation celebrated the 150th anniversary of the Gettysburg Address and our nation's solemn commitment to the proposition that all men are created equal, the state of Utah filed a legal brief arguing that it is within the rights of a state to impose laws creating second-class citizenship for LGBT Americans.

The state of Utah's arguments against marriage equality today are no more virtuous than were John C. Calhoun's calls for nullification, states' rights, and the subrogation of black Americans.

The state of Utah now finds itself in the awkward position of arguing that last summer's blockbuster U.S. Supreme Court decision, Windsor v United States, which struck down a discriminatory federal marriage law, should somehow be applied by the federal courts to uphold discriminatory marriage laws of a state.

Even Justice Antonin Scalia, an ardent foe of gay rights, has recognized the folly of Utah's position.

In his dissent, Justice Scalia wrote that the "the view this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking," and "[h]ow easy it is, indeed how inevitable" it is for courts to apply the Windsor decision to strike down discriminatory state marriage laws like Utah's Amendment 3.

The state of Utah nevertheless argues that its discriminatory marriage laws should be sustained because "Utah has the sovereign authority to define and regulate marriage."

Although the U.S. Supreme Court did recognize that "[b]y history and tradition the definition and regulation of marriage ... has been treated as being within the authority and realm of the separate States," Utah's position is untenable in face of the U.S. Constitution's supremacy clause and decisions of the U.S. Supreme Court.

The "sovereign authority [of Utah] to define and regulate marriage" is neither unfettered nor unlimited. The U.S. Constitution remains the supreme law of the land, and the U.S. Supreme Court pointedly noted that, "State laws defining and regulating marriage, of course, must respect the constitutional rights of persons."

The U.S. Supreme Court long ago established that access to civil marriage is among the fundamental rights guaranteed by the Constitution. For the same reasons why the U.S. Supreme Court refused in 1967 to allow Virginia to prohibit inter-racial marriage, Utah's ban on same-sex marriage must now be stricken as a violation of the U.S. Constitution so that LGBT Utahns will have access to civil marriage.

Utah's discriminatory marriage laws also violate the U.S. Constitution by targeting LGBT citizens for denigration and disfavored treatment.

The U.S. Supreme Court held that the Defense of Marriage Act "is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution" because the "principal purpose and the necessary effect of DOMA are to demean those persons who are in lawful same-sex marriage."

The state of Utah claims that Amendment 3 was not intended to demean LGBT Utahns but instead reflected the state's desire to promote procreation. This argument has failed before.

During the successful challenge to California Proposition 8, when the federal judge asked what harm would be done by allowing gay men and lesbians to marry, the attorney representing the proponents of California Proposition 8 famously replied, "I don't know."

There was an echo of this moment last Wednesday in Utah's federal district court. When asked to explain how Utah's same-sex marriage ban could advance the state's putative interest in procreation by opposite-sex couples, the assistant attorney general could only say that it was a good question.

There is no question, however, that Utah's Amendment 3 established a new system of marital apartheid in Utah that made LGBT Utahns into strangers from family law.

The state constitutional amendment also targeted LGBT Utahns for political disfavor.

Section 2 of Amendment 3 sought to prohibit not just marriage but any legal recognition of relationships of LGBT Utahns, stating, "No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect." Collectively, these provisions demean LGBT Utahns and their families by keeping them from achieving legal recognition or protection under state or local laws.

One hundred fifty years ago, standing upon a great battlefield from a war for equality, Abraham Lincoln identified the fundamental reason why Utah's discriminatory laws must now be stricken. The law must treat all people, including LGBT people, equally.

It is again time for a new birth of freedom — and long past time for LGBT Utahns to be afforded equality and dignity under the law.

Paul C. Burke and Brett L. Tolman are attorneys with Ray, Quinney and Nebeker.