State files response to Kitchen v. Herbert

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On Aug. 12 the State of Utah filed a formal response to the case of Kitchen v. Herbert, which seeks to overturn Utah’s Amendment 3.  The amendment, passed in 2004, not only bans same-sex marriage in Utah, it also prevents any other type of relationship that would have the same effect.

  1. Marriage consists only of the legal union between a man and a woman.
  2. No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.

Buried among numerous paragraphs of “State Defendants are without sufficient knowledge to admit or deny the allegations contained in….” lies the crux of the state’s argument … that Utah has the sovereign right to define and regulate marriage. Attorneys for the state further argue that “sexual orientation does not implicate a protected or suspect class to which heightened scrutiny applies.”

The case is being brought forth by three same-sex couples in Utah: Derek Kitchen and Moudi Sbeity, Karen Archer and Kate Call, and Laurie Wood and Kody Partridge. The suit names Governor Gary Herbert, Attorney General John Swallow, and Salt Lake County Clerk Sherrie Swensen, and argues that the Supreme Court of the United States has declared that “marriage is one of the ‘basic rights of man,’ fundamental to our very existence and survival.”  It goes on to claim that Utah’s Amendment 3, which restricts marriage to the union of one man and one woman, creates an inherent discrimination which denies gays and lesbians “the basic liberties and equal protections under the law that are guaranteed by the 14th Amendment to the United States Constitution.”

The state’s attorneys, while reserving the right to add additional defenses, hinge their arguments upon the constitutional right of the states to regulate marriage. They argue that same-sex marriage has never been recognized in Utah and that Utah’s public policy precludes the recognition of such marriages, even if recognized by other jurisdictions.

They further claim, without any clarification or supporting argument, that “Utah’s recognition of marriage as only the legal union between a man and a woman, is rationally related to a legitimate government interest.”

Attorneys for Salt Lake County Clerk Sherrie Swensen, Darcy Goddard and Ralph Chamness, filed their response on the same day. Their argument, however, differs greatly from the argument of the state.

“The County Clerk has a ministerial duty to abide by the laws of the State of Utah, and is required by statute to issue marriage licenses in accordance with existing Utah state law.  The County Clerk thus has no discretion regarding the issuance of marriage licenses.”

The suit is being funded by Restore Our Humanity, a local nonprofit, which has been doing extensive fundraising and public relations work regarding the suit, and was filed just before the United States Supreme Court debates regarding Proposition 8, California’s same-sex marriage ban, and the Defense of Marriage Act.  The Supreme Court, in June of this year, struck down both measures as unconstitutional.

There are currently cases pending in federal appeals court regarding same-sex marriage bans in Nevada and Hawaii.  Both bans were upheld by their respective federal district courts and are awaiting argument in the Ninth Circuit Court, which is also the court that initially struck down Proposition 8.



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