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Utah cites procreation in lawsuit over same-sex marriage

Sunday, October 13, 2013
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SALT LAKE CITY — Attorneys for the state of Utah are defending a state constitutional amendment that defines marriage as a union of a man and woman, saying it promotes the state’s interest in “responsible procreation” and the “optimal mode of child-rearing.”

The state, in motions filed Friday, asked U.S. District Judge Robert J. Shelby of Salt Lake City to find in its favor in a lawsuit over voter-approved Amendment 3 filed by three same-sex couples who maintain it’s unconstitutional.

UtahA hearing on the summary judgment motions is set for Dec. 4 before Shelby. If Shelby declines to grant summary judgment to either side, the case will proceed for a trial.

The state’s motion notes Utah is the most-married and “child-centric” state in the nation, and says the state has a right to set as policy an “age-old and still predominant” definition of marriage, reported The Salt Lake Tribune.

“Same-sex couples, who cannot procreate, do not promote the state’s interests in responsible procreation (regardless of whether they harm it),” the state argues.

The state further argues the case is “really about who decides, not who is right in this important policy debate,” and that Amendment 3 does not discriminate because “neither a man nor a woman may marry a person of the same sex.”

The outcome of the case will impact state sovereignty and states’ preference for children to be raised by married couples when possible, the state adds.

But in their motions filed Friday, attorneys for the same-sex couples maintain the choice of a marriage partner is a “fundamental right and liberty interest” protected by the U.S. Constitution and that the state amendment approved in 2004 discriminates against gays and lesbians.

The couples cite cases that have defined the freedom to marry as one of the “vital personal rights essential to the orderly pursuit of happiness.”

To restrict that right, the state must show its “marriage discrimination laws” are designed to meet a compelling government interest, they add. Amendment 3 fails that test because it furthers a moral view that same-sex couples are immoral and inferior to opposite-sex couples, they argue.

“The state has not identified a single harm that it, or anyone else, would suffer as a result of allowing plaintiffs to exercise their constitutionally protected autonomy to choose a marriage partner of the same sex,” the plaintiffs say.

The couples, who were denied a marriage license by the Salt Lake County Clerk’s Office, filed affidavits Friday describing how they feel the state’s ban has caused them humiliation, emotional distress, pain, psychological harm and stigma.

The lack of public recognition of their relationships creates challenges that range from not being able to share gym memberships to confusion about how to fill our car rental and hotel forms and secure assets, they say.

The couples say other harms include not being able to jointly file federal and state tax returns in Utah and to have their joint holdings recognized as marital property.

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