Suit challenging Utah’s Amendment 3 moves forward

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On March 25, 2013, three couples filed suit in the United States District Court challenging the constitutionality of Utah’s Amendment 3. The suit is being supported by a local group, Restore Our Humanity, and names Governor Gary Herbert, Attorney General John Swallow, and Salt Lake County Clerk Sherrie Swensen as defendants.

Amendment 3, put into state law in 2004, stipulates not only that marriage is strictly the legal union of a man and a woman, but also goes further in prohibiting any other domestic union from being recognized as a marriage or being “given the same or substantially equal legal effect.”

The complaint, filed by attorneys James Magleby, Peggy Tomsic, and Jennifer Parrish of Magleby & Greenwood, argues that Amendment 3 violates the equal protection clause of the 14th Amendment to the United States Constitution because it denies access to marriage to gay and lesbian citizens. Marriage was determined by the Supreme Court to be “one of the ‘basic rights of man,’ fundamental to our very existence and survival.”  Loving v. Virginia, 1967.

The case has been assigned to Judge Robert J. Shelby. The Utah Attorney General’s office has until early August to respond to the initial complaint. Mark Lawrence, Director of Restore Our Humanity, estimates the case will go to trial within the next year, and Phil Lott, the Deputy Attorney General assigned as lead on the case, concurred.

Lott noted that the initial pleading, which will be filed shortly, will delineate the state’s position. “The citizens of Utah have the right to define what marriage is,” he said.

The plaintiffs in the case, disagree, arguing that the U.S. Constitution, specifically the 14th Amendment, requires all citizens be given equal treatment under the law and that laws which create inherent inequality between citizens are therefore unconstitutional.

Regardless of Judge Shelby’s decision, it is anticipated that this case will be appealed to the 10th Circuit Court.

Two other western states, Nevada and Hawaii, have had their same-sex marriage bans challenged in federal court. In both cases, the district court sided with the states.  Both are now pending appeal to the 9th Circuit Court, the same court that struck down California’s Proposition 8.

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