Attorney for same-sex couples files brief in Amendment 3 appeal

Published: Wednesday, Feb. 26 2014 6:10 a.m. MST

The Utah law defining marriage as between a man and a woman treats same-sex couple as "legal strangers" and denies them the rights and benefits heterosexual couples enjoy, according to a new court filing.

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SALT LAKE CITY — The Utah law defining marriage as between a man and a woman treats same-sex couple as "legal strangers" and denies them the rights and benefits heterosexual couples enjoy, according to a new court filing.

Lawyers for three gay and lesbian couples further argue that the purpose of the state's voter-approved constitutional amendment is to impose inequality on same-sex couples and their children.

"They wish their relationships to be accorded the same dignity, respect, and security as the relationships of married couples they know in their state," attorney Peggy Tomsic wrote in a 118-page brief filed in the 10th Circuit Court of Appeals just before midnight Tuesday.

"But because of Amendment 3, they are denied not only the substantial protections that flow from civil marriage, but also the common vocabulary of family life and belonging that other Utahns may take for granted."

The filing is in response to the state's appeal of a U.S. District Court decision last December that struck down Utah's ban on same-sex marriage. Judge Robert J. Shelby ruled that the law violates the equal protection and due process clauses in the 14th Amendment.

The state contends it has the constitutional authority to define marriage, and that the union of a man and a woman is the best setting to bear and rear children. It also argues that traditional marriage furthers Utah's interests in accommodating religious freedom and preserving social harmony, while redefining marriage would be a recipe for social and religious strife.

Tomsic wrote that many courts have found that there is no rational connection between excluding same-sex couples from marriage and the state’s interests in procreation or parenting.

"There is no reasonably conceivable way in which excluding same-sex couples from marriage advances any permissible aim of government," according to the brief. "Indeed, the principal justification proffered by the state — a purported interest in preferring some parents over others — is not even a legitimate governmental interest."

The plaintiffs do not seek recognition of a new right to same-sex marriage as the state claims, but want the same fundamental right to marry as others enjoy, Tomsic wrote.

Gay couple Derek Kitchen and Moudi Sbeity and lesbian couple Laurie Wood and Kody Partridge filed the lawsuit against the state last March after Salt Lake County would not issue them marriage licenses. Karen Archer and Kate Call, who were legally married in Iowa, joined the suit because Utah does not recognize their marriage as valid.

"No matter how deeply they care for one another or how long they have stood by one another, for better or for worse, in sickness and in health, Amendment 3 treats plaintiffs and other same-sex couples as legal strangers to one another," according to the court filing.

Utah appealed Shelby's Dec. 20 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.

The state argues that redefining marriage as a "genderless, adult-centric institution" would fundamentally change Utah's child-centered meaning and purpose of marriage.

"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," according to the state.

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