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Parties have now finalized arguments in Amendment 3 case

Published: Saturday, March 15 2014 8:00 a.m. MDT

Upholding a federal judge's decision to strike down Utah's marriage law would be a "judicial wrecking ball" hurtled at state sovereignty, lawyers for Utah told a federal appeals court late Friday.

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SALT LAKE CITY — Affirming a federal judge's decision allowing same-sex marriage in Utah would be a "judicial wrecking ball" to state sovereignty, the state says in a new court filing.

State attorneys asked the 10th Circuit Court of Appeals to let Utahns choose for themselves how to strike the right balance between competing interests in the marriage debate — a balance that in their judgment best serves the interest of children now and in the future.

Upholding U.S. District Judge Robert J. Shelby's ruling would "impose — by judicial fiat rather than democratic processes — the novel principle that marriage is whatever emotional bond any two (or more) people say it is."

The state also says it would establish in federal law the "corrosive principle that moms and dads are interchangeable and, ultimately, irrelevant to children."

Utah's latest arguments in its appeal of Shelby's decision came just before midnight Friday as a reply to the brief filed last month by lawyers for three gay and lesbian couples who sued the state over its ban on same-sex marriage.

Both sides have now filed their written arguments and dozens of individuals and organizations have weighed in with friend-of-the-court briefs. The 10th Circuit will hear oral arguments April 10 in Denver.

The couples contend that Utah's voter-approved Amendment 3 defining marriage as between a man and a woman treats same-sex couples as "legal strangers" and denies them the rights and benefits that married heterosexual couples enjoy. They say the purpose of the law is to impose inequality on same-sex couples and their children.

State attorneys say the law was not intended to cause harm to relationships outside traditional marriage.

Among other rights, same-sex couples are free to jointly own property and to authorize each other to make health care decisions without a marriage license.

Utah's 108-page filing argues that states have the right to define marriage and that it should be protected from federal intrusion. Courts around the nation and the world have held that whether to redefine marriage to include same-sex relationships should be left to the people and their democratically elected representatives, according to the state.

Affirmation of Shelby's ruling would be "an unprincipled judicial wrecking ball hurtling toward an even more important arena of traditional state authority."

"It would also unfairly dismiss the majorities in more than half of the states — and numerous judges — as irrational bigots," state attorneys wrote.

"And it would do so under the authority of a nearly 150-year-old amendment that, until recently, had never been understood by any judge or scholar to mandate that marriage be redefined to include same-sex couples."

Shelby ruled last December that Utah's law against same-sex marriage violates the equal protection and due process clauses of the 14th Amendment.

In their brief, attorneys for the plaintiffs argued 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.

"They wish their relationships to be accorded the same dignity, respect, and security as the relationships of married couples they know in their state," lawyer Peggy Tomsic wrote.

"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."

Lawyers for the state say they have submitted hundreds of pages of social science and other evidence to show that redefining marriage would subject Utah’s children to serious long-term risks. The plaintiffs and their supporters rebutted those studies in court briefs.

Taking the right to define marriage from the states would make them "second-class sovereigns" with populations federal courts deem "too backward or ill-informed to fall in line behind national opinion leaders," according to the court filing.

Public opinion is apparently in flux, state attorneys say. No one knows what the outcome will be nationally or in any given state. The fact that different states have chosen different paths is not a sign of political weakness, but it is a sign of a healthy and diverse nation, they say.

Attorneys for Utah say upholding Shelby's ruling would ruin any chance for compromise and accommodation in the states for a "peaceful and relatively harmonious" resolution of what is a highly contentious issue.

Email: romboy@deseretnews.com

Twitter: dennisromboy; DNewsPolitics

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