Scott G Winterton, Deseret News
SALT LAKE CITY — The state of Utah has fired back in defense of its ban on same-sex marriage, arguing in a legal brief that it has a sovereign right to define and regulate marriage.
The response by the Utah Attorney General's Office was filed this week in U.S. District Court after three couples challenged the law in March, seeking to have Amendment 3 declared unconstitutional.
But Utah's attorneys argue that same-sex marriage is not a constitutionally protected fundamental right or liberty.
"Utah's recognition of marriage as only the legal union between a man and a woman does not violate the U.S. Constitution," the brief states.
Sen. Jim Dabakis, an openly gay lawmaker and founding chairman of the Utah Pride Center, said Utah attorneys wrongly argued that the same-sex marriage ban is not discriminatory.
"This is clearly a tortured position for our highest elected officials to carry. There may be disagreements on gay marriage. But it is disingenuous for the attorney general and the governor to say Utah's marriage ban does not discriminate," said Dabakis, who is also chairman of the Utah Democratic Party.
"Of course it does. Our elected officials should have the guts to say the truth. That is, the marriage ban discriminates and they favor that discrimination."
The three couples challenging the law — Karen Archer and Kate Call, Derek Kitchen and Moudi Sbeity, and Laurie Wood and Kody Partridge — claim marriage in Utah should be available to couples, regardless of their sexual orientation.
“We don't want to step on anyone's toes, but we also really desire to have equality and to achieve the exact same things everybody else in this state wants,” Kitchen said.
Amendment 3, which appeared on a statewide ballot in 2004, was supported by 66 percent of Utah voters. The amendment defines marriage as a union between one man and one woman.
It also said “same-sex marriage has never been recognized in Utah” and “same-sex marriages performed in other jurisdictions are not recognized in Utah.”
Valarie Larabee of the Utah Pride Center said the wording of the state's arguments is clearly in response to recent Supreme Court rulings on same-sex marriage rights.
“I was shocked at the seeming detachment of the state of Utah to the issues that are so personal to members of the LGBTQ community,” Larabee said.
On Wednesday, the California Supreme Court refused to stop same-sex marriages in that state. The brief, unanimous ruling tossed out a legal challenge by ban supporters without addressing their legal arguments in support of Proposition 8, a ballot measure passed by voters in 2008 that defined marriage solely between a man and a woman.
The state high court ruling came about two months after the U.S. Supreme Court refused to consider the issue, leaving in place a lower-court ruling that struck down the ballot measure as unconstitutional.
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