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Plaintiffs in Utah same-sex marriage case file brief with appeals court

Wednesday, February 26, 2014
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Rick Bowmer, APDerek Kitchen, left, and his partner Moudi Sbeity, right, talk with the media outside Frank E. Moss United States Courthouse following court on Wednesday, Dec. 4, 2013, in Salt Lake City.

Rick Bowmer, AP
Derek Kitchen, left, and his partner Moudi Sbeity, right, talk with the media outside Frank E. Moss United States Courthouse following court on Wednesday, Dec. 4, 2013, in Salt Lake City. Kitchen and Sbeity are lead plaintiffs in the challenge to Utah’s gay marriage ban.

SALT LAKE CITY — Attorneys for three gay and lesbian couples have filed a brief with an appeals court contesting Utah’s same-sex marriage ban, which a federal judge overturned in December.

The 118-page response was filed late Tuesday with the 10th U.S. Circuit Court of Appeals. The brief says the ban “cements discrimination” into the state’s Constitution and denies those families a “common vocabulary of family life and belonging.”

“No matter how deeply they care for one another or how long they have stood by one another, for better or worse, in sickness and in health, [Utah's ban] treats plaintiffs and other same-sex couples as legal strangers to one another,” the brief states.

The ban tells them that “they are not, and never can be, true families,” the attorneys wrote.

The state appealed after U.S. District Judge Robert J. Shelby found the ban unconstitutional on Dec. 20. More than 1,000 gay couples married in Utah before the U.S. Supreme Court granted the state an emergency stay in January.

Utah filed its opening argument Feb. 3, claiming Utah’s same-sex marriage ban was justified based on the state’s interest in giving heterosexual couples “privileged and special status” because they are able to procreate biologically.

The plaintiffs’ brief also took aim at the discredited 2012 study on gay parenting by University of Texas sociology professor Mark Regnerus, cited by the state:

With respect to the studies authored by Mark Regnerus, … Regnerus “did not actually study individuals reared by same-sex partners” and the journal that originally published his study has since published an audit noting that this fact alone should have precluded any publication of his work. While the State admits that Regnerus’ work “is not conclusive” regarding “same-sex parenting,” … its citation to this study at all is misleading.

Critics say Regnerus’ study was based on “flawed methodology,” and was subsequently rejected by hundreds of scholars as well as the American Sociological Association.

The case, Kitchen v. Herbert, was brought by Utah couples Derek Kitchen and Moudi Sbeity; Laurie Wood and Kody Partridge; and Karen Archer and Kate Call. The couples are represented by the National Center for Lesbian Rights (NCLR) and the law firm of Magleby & Greenwood, P.C.

“Courts are recognizing there is no reasonable justification for laws that treat same-sex couples differently and cause so much harm to their families,” said NCLR Legal Director Shannon Minter. “As people have come to know these families, they have seen firsthand the unfairness of laws that deny protection to loving, stable relationships and stigmatize children being raised by same-sex parents.”

“We are within sight of the day when same-sex couples across the country have the same freedom to marry and to have their marriages respected as others,” said Minter.

Oral arguments are scheduled for April 10.

Follow the case: Kitchen v. Herbert.

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