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Demonstrators stand outside the Supreme Court in Washington, Tuesday, March 26, 2013, where the court will hear arguments on California's voter-approved ban on same-sex marriage, Proposition 8. (AP Photo/Pablo Martinez Monsivais)
Gay marriage: Utah groups send justices their arguments

First Published Mar 26 2013 10:45 am • Last Updated May 31 2013 11:37 pm

Washington » The legal battle over gay marriage isn’t just fought in the chambers of the Supreme Court or the dueling protests on the street outside, but in dozens of legal briefs filed by politicians, academics and activists.

A handful of these "friend-of-the-court briefs" have deep Utah ties, some arguing to uphold California’s gay-marriage ban, known as Proposition 8, and the federal Defense of Marriage Act (DOMA) — the two laws the Supreme Court is hearing challenges to this week — and some calling on the court to reject them.

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Here’s a summary starting with those who want to keep marriage laws as is, a group that includes the state’s traditional power brokers:

The State of Utah » The attorneys general of 17 states, including Utah, say current marriage laws may impact gay Americans, but they were not drafted to target them, and therefore, the court should not consider them a protected class.

"The traditional definition of marriage has always been about the need to encourage potentially procreative couples to stay together for the sake of the children their sexual unions may produce, not about animus towards homosexuals," they argued.

The AGs also argue that finding gay-marriage bans unconstitutional would "cause irredeemable harm to the nation as a deliberate, democratic society," on par with the political tumult surrounding abortion rights.

Republican senators » Sen. Orrin Hatch, R-Utah, led the Judiciary Committee in 1996 when Congress overwhelmingly passed DOMA and he continues to support it today.


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He led a group of nine colleagues who filed a brief focused on federal reasons for defining marriage as between opposite-sex adults, noting the law only restated existing practice, since before DOMA gay marriage was not legally recognized.

They said DOMA maintained "certainty in the application of federal law," avoiding legal challenges on legal benefits given to married couples. And they said by offering federal benefits to only straight couples, the government protected each state’s ability to "preserve traditional marriage."

Their brief states: "If federal benefits were available for same-sex couples validly married under state law, however, federal law would serve as an incentive for state recognition of same-sex marriage."

The LDS Church » Utah’s dominant faith joined five religious groups in defending DOMA in a brief that was written by The Church of Jesus Christ of Latter-day Saints’ Utah-based law firm Kirton McConkie.

The faiths argue that the gay-marriage issue shouldn’t be seen as a fight for equal rights for "a discrete and insular minority" but as a cultural debate over the very meaning of marriage, and they don’t believe the court should settle the matter.

They depict a policy fight among those who see marriage as "inherently oriented toward procreation and child-rearing" and those who view marriage "as primarily a vehicle for affirming and supporting intimate adult relationship choices," and they think it is one that should continue to play out in state legislatures and Congress.

"We have just as much right as anyone else to have our views considered by democratic decision makers," the brief states. "But that cannot properly occur if the great marriage debate is removed from our democratic institutions."

Social science professors » Two Brigham Young University professors joined five of their colleagues to challenge a claim by the American Psychological Association that there’s no difference in the outcomes of children raised in straight or gay households.

The educators, including BYU’s Alan Hawkins and Joseph Price, argue the APA is relying on non-random studies of limited scope.

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