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(Keith Johnson | The Salt Lake Tribune) Mark Hofeling, left, exchanges rings with new husband Jesse Walker while being married by Salt Lake City Mayor Ralph Becker outside the Salt Lake County Clerk'sOoffice, Friday, December 20, 2013. Becker is helping launch Utah Unites for Marriage, a new group to support same-sex marriage.
Op-ed: Utah cannot justify marital apartheid

By Paul C. Burke, John W. Mackay and Brett L. Tolman

First Published Feb 10 2014 04:14 pm • Last Updated Feb 10 2014 06:45 pm

To find conclusive proof that Amendment 3 is unconstitutional, the 10th Circuit Court needs to look no further than the brief filed last week by the state of Utah, which tries to justify second-class citizenship for same-sex couples in Utah based on the ill-founded belief that they are supposedly third-rate parents.

The state’s brief confirms that the purpose and effect of Amendment 3 is to categorize Utahns into different groups with different rights, depending on whether Utah approves (or not) of their most intimate and personal relationship.

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The state writes that "the most obvious and important impact" of marriage equality "would be the loss of the state’s ability to give special preference and recognition to families consisting of children being raised either by both biological parents or at least by two parents of opposite sex."

This statement stands as an admission that Amendment 3 is meant to classify some citizens — straight people and their children — as more valued and important than gay citizens and their children.

Amendment 3 denies equal status in marriage to a disfavored group, and Utah insists that states should be able to use their laws to value some families more than others. This contention is simply incompatible with the U.S. Constitution’s guarantee of equal protection under the law for all citizens. Utah is not entitled to decide that some people — or some families — are more worthy than others.

The state’s brief suffers from no shortage of illogic. Consider that the state contends that family law is the exclusive province of the states, only to then acknowledge that the "history of Utah’s definition of marriage" began with a federal mandate against polygamy.

Then, after insisting that a "society can have but one understanding of marriage: It is either a uniquely man-woman institution or it is not," the state suggests that federalism should permit a "diversity of outcomes on the question of marriage" whereby 49 states could presumably recognize marriage equality but Utah alone should be allowed to cling to its system of marital apartheid.

The state’s bid for exclusive jurisdiction over the realm of family law will not succeed. Just last year, the U.S. Supreme Court declared that "The States’ interest in defining and regulating the marital relation" is "subject to constitutional guarantees." Thereafter, Judge Robert Shelby correctly found that Amendment 3 violated the constitutional guarantees of equal protection and due process under the law.

Utah claims that it "respects and values those (gay) citizens and their children as both equal before the law and fully entitled to order their private lives in the matter they have chosen," yet the state is failing to sustain the U.S. Constitution’s promise of equal protection under the law for all citizens.

Although Utah recognizes marriages entered by straight people regardless of jurisdiction, the state is continuing to use Amendment 3 to preclude the public recognition of marriages between gay people that have been solemnized either in Utah or other states.


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The state claims that "redefining marriage in genderless terms would seriously undermine, if not destroy, the state’s message that biological mother-father parenting is best for children." The state then argues "that model is not intended to demean other family structures, any more than giving an ‘A’ to some students demeans others."

Utah’s report card on parenting then assigns lower grades to adoptive parents and single parents, while expelling same-sex couples entirely from state-sanctioned marriage. The state’s parenting grades are based on junk science and willful ignorance of the existing scientific consensus on same-sex parenting.

"The abilities of gay and lesbian persons as parents and the positive outcomes for their children are not areas where credible scientific researchers disagree," according to the American Psychological Association.

The state’s justifications for its system of marital apartheid cannot withstand factual, scientific, or constitutional scrutiny. Ironically, the state’s vision of a "child-centric" marriage is patently unconstitutional because of the harm Utah is imposing by law on the children of same-sex couples.

Last summer, the Supreme Court struck down the Defense of Marriage Act, finding that "the law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives." Amendment 3 has the same effect.

Long ago, American jurisprudence established that our Constitution will neither recognize nor tolerate classes among citizenship, and last year the U.S. Supreme Court declared that a federal definition of marriage excluding gay couples is unconstitutional because it "humiliates tens of thousands of children now being raised by same-sex couples."

Together, these principles explain why Amendment 3 has failed its constitutional test. Utah’s latest attack on marriage equality deserves a failing grade.

Paul C. Burke, John W. Mackay, and Brett L. Tolman filed an amicus brief with the U.S. Supreme Court on behalf of the Utah Pride Center and a national coalition of equality groups last year.



Copyright 2014 The Salt Lake Tribune. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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