Traditional marriage is the best place to rear children, Utah appeal says

Published: Tuesday, Feb. 4 2014 8:35 a.m. MST

Utah has the constitutional authority to define marriage as the union of a man and a woman, which attorneys for the state argue in an appeals court brief filed late Monday is the best setting in which to rear children.

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SALT LAKE CITY — Utah has the constitutional authority to define marriage, and the union of a man and a woman is the best setting to bear and rear children, attorneys for the state argue in an appeals court brief filed just before midnight Monday.

They also contend that traditional marriage furthers the state's interests in accommodating religious freedom and preserving social harmony in the state, while redefining marriage would be a recipe for social and religious strife.

"Redefining marriage as a genderless, adult-centric institution would fundamentally change Utah's child-centered meaning and purpose of marriage," according to a 120-page brief filed in the 10th Circuit Court of Appeals.

"A society can have but one understanding of marriage: It is either a uniquely man-woman institution, or it is not. Because man-woman unions are unique in their ability to produce children, maintaining the man-woman definition reinforces the child-centric view of marriage."

The filing is the state's opening volley in its appeal of U.S. District Judge Robert J. Shelby's Dec. 20 ruling that Utah's voter-approved definition of marriage violates same-sex couples' right to equal protection under the 14th Amendment.

State attorneys made some of the same arguments in previous court filings regarding Amendment 3, but newly hired lead counsel Gene Schaerr articulated them more in depth and with more supporting evidence.

But Salt Lake attorneys Brett Tolman and Paul Burke, who represented the Utah Pride Center at the U.S. Supreme Court in the federal Defense of Marriage Act case, say the state relies on "junk science" to indict gay parents and demean their families.

"The state of Utah's latest defense of Amendment 3 offers only a new candor that the state wants to consign LGBT Utahns to second-class citizenship based on the belief they make third-rate parents," they said in a statement. "The state's arguments are flawed and will ultimately fail because the U.S. Constitution neither knows nor tolerates classes among American citizenship."

Conversely, the Salt Lake-based Sutherland Institute called the state's strategy "brilliant."

"The people of Utah can have confidence that their overwhelming majority view of marriage and family has been well represented. Indeed, the state’s argument sets the new legal standard in defense of the state interest in traditional marriage and the natural family," the conservative political think tank said in a statement.

Utah Attorney General Sean Reyes also issued a statement Tuesday, saying the brief clarifies why the appeals court "should uphold the decision of Utah’s citizens to retain the marriage definition that has been in place since the state’s inception."

"The legal question at issue is not the fundamental right of same-sex couples to enter into exclusive and permanent relationships, raise children or bequeath property at their death. Utah law already gives those rights," Reyes said.

"The constitutional question is whether it is reasonable for Utah's citizens to believe that a child benefits most from being raised by his or her biological mother and father in a permanent relationship, and that such relationships should therefore be encouraged through recognition as marriages."

Reyes has support from Republican state lawmakers, whom he briefed on the case last month.

Senate President Wayne Niederhauser, R-Sandy, said it is the state’s "duty to defend our jurisdiction over the definition of marriage."

Senate Minority Caucus Manager Luz Robles, D-Salt Lake City, would not comment for Senate Democrats as a whole but noted "there are many types of families."

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