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My view: Utah — Defending marriage at the Supreme Court

By Bill Duncan

For the Deseret News

Published: Thursday, June 5 2014 2:18 p.m. MDT

As the attorneys representing Utah have noted, Utah is unique in its commitment to preserving the ideal that children deserve to be raised by a married mother and father. It would only be fitting for the state to have the chance to make its case.

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Utah’s robust defense of its law, added to the status of Utah’s case as the first since the top court’s 2013 ruling, makes it the premier case for a decision on the constitutionality of state marriage laws.

Since the U.S. Supreme Court ruled in June 2013 that the federal government had to defer to states’ legal definitions of marriage, 60 or more lawsuits have been filed in federal and state courts in an attempt to force states to redefine marriage to include same-sex couples. It is widely believed that one or more of these cases will be heard by the U.S. Supreme Court at some point in the future. Why? Because the cases are all premised on the idea that the Supreme Court’s 2013 decision was meant, though without specifically saying so, to mandate same-sex marriage for all the states.

So, a key question is which case will be the vehicle for the Supreme Court to address the issue. There are four reasons to believe that Utah’s case would be the best and likeliest for this.

First, Utah is making a robust defense of its law. This should be a given since our adversarial system depends on each side in a legal dispute getting a full and effective representation. That, unfortunately, is often the opposite of what has been happening. Currently, the Virginia attorney general has refused to defend the marriage amendment enacted by the people of that state and which is now being challenged in federal court. This is also the case in Oregon. To his credit, the attorney general of Arkansas is still willing to defend the law in that state though he personally supports redefining marriage. (It would probably have been better to appoint outside counsel to defend the case, however, since the AG is on record as favoring a result contrary to his position in the case.)

Having both sides of a lawsuit adequately represented is crucial because it ensures the Supreme Court will be able to hear all relevant arguments before making a decision that will impact the laws of every state and the fundamental unit of society.

Second, and related to the first, there are no problems of “standing” in the Utah case — a problem that arose in the challenge to California’s Proposition 8. There, the governor and attorney general refused to defend the law of the state, so a citizens group had to do that. The Supreme Court said that a third-party group could not appeal the trial court’s decision in the case. This issue is also present in the Oregon and Virginia cases as well as a case from Nevada. But here, it is the state of Utah appealing the district court decision.

Third, Utah’s was one of the first decisions by a federal district court judge ruling that a state’s marriage amendment should be invalidated based on guesses of how a majority of Supreme Court justices might vote on state marriage laws. The decision suggested the voters were adopting an irrational law whose purpose was to single out a group of their fellow citizens for unfair treatment (as if the laws of virtually all known human societies that have treated marriage as a male-female union were a vast conspiracy of exclusion). The rhetoric in the cases that have been decided since Utah’s has been even more heated. There is thus good reason for the Supreme Court to step in to clarify the meaning of its earlier decision and rein in the advocacy of the trial judges in these cases.

Finally, Utah’s case is likely to be the first heard by the Supreme Court because it is the furthest along in the appeals process, with oral argument held in early April. This sets Utah’s case apart from cases like Idaho and Michigan, where the attorneys general are defending the law but the appeals process is not very far along. The 10th Circuit Court of Appeals panel assigned to the case had agreed to hear the case on an expedited basis, so a decision should be coming soon. Only one other appeals court has heard an argument — the Virginia case just went before the 4th Circuit in recent weeks. It is thus very likely that Utah’s case could be the first ready for the Supreme Court to hear.

As the attorneys representing the state have noted, Utah is unique in its commitment not only in word, but also in deed, to preserving the ideal that children deserve to be raised by a married mother and father. It would only be fitting for the state to have the chance to make its case that the people of the state should be allowed the right of self-determination in deciding whether to retain that principle in their laws.

Bill Duncan is the Sutherland Institute Director of the Center for Family and Society.

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