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

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

While voters may have approved Amendment 3 in 2004, “there have been a lot of changes (since then)," Robles said.

Shelby's court ruling came after three gay and lesbian couples challenged the state's ban on same-sex marriage in a federal lawsuit last March.

Utah appealed the decision and asked the 10th Circuit to put the ruling on hold, but the Denver-based court rejected the request. The state turned to the U.S. Supreme Court, which issued a stay on Jan. 6. Approximately 1,300 couples were married in Utah during that 17-day period.

Schaerr contends in the filing that Shelby failed to give adequate weight to Utah's reasons — which he says are supported by common sense and substantial social science — for retaining its definition of marriage. And, he says, the judge came to an erroneous conclusion based on a "novel" reading of constitutional guarantees of due process and equal protection.

"Contrary to the district court’s conclusion, there is no fundamental 14th Amendment right to a state marriage certificate allowing two people of the same sex to marry," he wrote.

Utah's marriage definition does not interfere with adults’ ability to commit to an exclusive, loving relationship with others of the same sex, or to bring children into that relationship, according to the brief.

"Instead, the laws at issue here simply encourage a familial structure that has served society for thousands of years as the ideal setting for raising children," Schaerr wrote. "Nothing in the federal Constitution prevents Utah’s citizens from making that choice."

Besides avoiding risks to religious freedom and social peace, traditional marriage advances at least three legitimate and compelling state interests, according to the brief.

Specifically, it:

Prevents further erosion of the traditional concept of marriage as being focused first and foremost on the welfare of children rather than the emotional interests of adults.

Increases the likelihood that children will be raised by their biological mothers and fathers — or at least a mother and father — in intact families.

Ensures adequate reproduction by parents willing and able to raise their children in stable homes.

The state cites numerous social science studies and reports and court cases to support its argument, including data that show birth rates decline in countries and states that have adopted "genderless" definitions of marriage.

State attorneys also maintain that religious support for defining marriage as between one man and one woman is widespread and deeply rooted in all three major Abrahamic faiths — Christianity, Judaism and Islam — and one of the other two largest world religions — Buddhism.

"Millions of Utahns who accept these traditions understand marriage and sexuality as gifts from God, designed not principally for the gratification of adults, but to provide an optimal setting for bearing and raising children," according to the brief.

Citing a group of pro-same-sex marriage law professors, the state argues that redefining marriage "could create a whole new set of problems for the religious liberty of those religious believers who cannot conscientiously participate in implementing the new regime."

Those include government being pressured to revoke churches' tax-exempt status, force religious agencies to cease adoption and foster care services, and punish religious colleges for adhering to their views on marriage in student housing, curriculum and hiring, according to the brief.

The plaintiffs' response to the state's appeal is due Feb. 25. The court has scheduled oral arguments for April 10.

Three nonprofit groups — the Center for Urban Renewal and Education; Coalition of African American Pastors USA and Frederick Douglass Foundation — jointly filed Tuesday the first what could be a dozen amicus or friend-of-the-court briefs supporting both sides in the case.

The brief argues that the Supreme Court decision in Loving v. Virginia, which overturned that state's ban on interracial marriage in 1967, is not analogous to the Utah same-sex case as Shelby asserted in his ruling.

Republican leaders in the Utah Senate also expressed their support Tuesday of the state’s latest legal arguments filed in defense of Amendment 3.

Majority Whip Sen. Stuart Adams, R-Layton, said the state’s sovereignty is a key concern.

"This is an issue that ought to be determined by the state and not the federal government," Adams said. "That alone, in my mind, is worthy of pursuing."

Sens. John Valentine, R-Orem, and Lyle Hillyard, R-Logan, both of whom are attorneys, expressed their support for the state’s defense of Amendment 3.

“We don’t file may cases to the Supreme Court," Valentine said. "That’s why we had to have outside counsel. We have to do this. We’re talking about the framework of Utah’s constitution.”

The state will pay Schaerr and two other outside attorneys a total of $300,000 for the appeal in the 10th Circuit.

Contributing: Marjorie Cortez

Email: romboy@deseretnews.com

Twitter: dennisromboy; DNewsPolitics

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