Michael Aaron

News analysis: Utah same-sex marriage brief is a cut-and-paste from the ultra-conservative agenda

Late last night, the state of Utah filed its opening arguments in its appeal of District Judge Robert Shelby’s ruling that the state’s laws prohibiting same-sex marriage are unconstitutional. The court had given the state an extra week to make the filing and the team took all but the last half hour of that time.

The 120-page, 17,000-word brief was entered by Gov. Gary Herbert and Utah Attorney General Sean Reyes. Salt Lake County Clerk Sherrie Swenson did not file a brief in the appeal. With citations, the typographical error-ridden brief is nearly 45,000 words.

But it is largely a cut-and-paste of old arguments used in failed anti-marriage equality briefs in cases across the country and in websites of ultra-conservative groups, out-of-context quotes, debunked studies and outright fabrications.

Citing many ultra-conservative organizations and authors, the brief argues that states have traditional authority over marriage, that “man-woman” marriage is the historic definition, that states which recognize same-sex marriage are doing so as “recent experimentation,” that the 1971 Supreme Court’s refusal to hear the Baker v. Nelson case is the controlling case and not the 2013 U.S. v. Windsor case and that no fundamental due-process right to marry someone of the same sex currently exists in the country.

The state’s argument, in brief

The argument begins that, while Utah “respects and values those citizens [in same-sex relationships] and their children as both equal before the law and fully entitled to order their private lives in the manner they have chosen,” the state “has a duty to consider their [all Utah’s children] interests in deciding whether to abandon the man-woman definition of marriage.”

Utah claims that “sound social science” affirms “that the diversity of having both a mom and a dad is the ideal parenting environment.”

“That model is not intended to demean other family structures, any more than giving an ‘A’ to some students demeans others,” the state argues in what may be the brief’s most demeaning argument.

The legal team said that, should same-sex marriage become legal, marriage would shift from a child-centric institution to an adult-centric one, resulting in more self-interest, increased fatherlessness and motherlessness and reduced birthrates.

It also says that other states which have validated same-sex marriage claimed they had “historic and essential authority” to define marriage free from “federal intrusion.”

“States like Utah that decide to place greater weight on the benefits to children of retaining the gendered definition of marriage are entitled to the same deference and respect. Anything less would effectively federalize domestic relations law,” the brief states.

“Because the district court did not give proper deference to the choice of Utah’s citizens, the State requests that this Court reverse,” the brief continued.

Historic definition of marriage

The first cited quote, used by many ultra-conservative groups, comes from “Zero Population” sociologist Kingsley Davis, who wrote that, “The genius of the family system is that, through it, the society normally holds the biological parents responsible for each other and for their offspring.”

But Davis once called himself a “social scientist provocateur” and raised eyebrows by writing such controversial things as male sexual jealousy was “a foundation stone of social organization,” and that prostitution was a benefit to society — quotes the conservative groups and the state of Utah somehow did not use.

The state then cites dictionaries of 1869 and 1871 defining marriage as between a man and a woman. In Noah Webster’s Etymological Dictionary, marriage was defined as: “a union of a man and woman for life by marriage, a particular matrimonial union.” Merriam-Webster (yes, the same Webster) now defines marriage as: “the relationship that exists between a husband and a wife; a similar relationship between people of the same sex; a ceremony in which two people are married to each other.”

It seems the Utah lawyers are stuck in the 1800s, but time marches on around them.


On to a quote from an 1852 book by lawyer Joel Prentiss Bishop.

“Marriage between two persons of one sex could have no validity, as none of the ends of matrimony could be accomplished thereby. It has always, therefore, been deemed requisite to the entire validity of every marriage … that the parties should be of different sex.”

Interestingly, the quote is edited, having been taken from a section of his book on impotence. The part after the ellipses actually fully reads: “… not only that the parties should be of different sex, but they should be essentially complete in their sexual organization and capabilities.”

The author went on to write, “Every contract of marriage, therefore, implies a capability in the parties of consummation. When a person, knowing of his defect, induces another who is ignorant of it, to marry him, he commits a gross fraud and grievous injury.” He then writes that the marriage should be nullified on the grounds of fraud or, if the man was unaware of his impotence, on the grounds of “implied warranty.”

This raises a question posed by Judge Shelby during oral arguments before him. Would it be constitutional to refuse marriage to menopausal women or others who cannot procreate? State attorney Phillip Lott said that it would not. The state, in using this quote, seemingly treads perilously close to raising this argument once again.

Utah Statehood

The state argues that there was a federal mandate to “limit marriage to the union of one man and one woman” in order to become a state. In reality, the Utah Constitution reads: “First: Perfect toleration of religious sentiment is guaranteed. No inhabitant of this State shall ever be molested in person or property on account of his or her mode of religious worship; but polygamous or plural marriages are forever prohibited.”

No “one-man one-woman” anywhere to be found.

Genderless vs. Traditional Marriage

The state then goes into great length about the crystal clear difference between “genderless” marriage and “traditional” marriage.

” A society can have but one understanding of marriage: It is either a uniquely man-woman institution, or it is not. Because man-woman unions are unique in their ability to produce children, maintaining the man-woman definition reinforces the child-centric view of marriage. And by reinforcing that understanding, the State gently encourages parents to routinely sacrifice their own interests to the legitimate needs and interests of their children. Given its enormous benefits to children generally, the State has an important and compelling interest in encouraging selfless parenting,” the legal team wrote.

The brief outlines four of what it calls compelling reasons that it should be able to retain its gendered definition of marriage.

First, genderless unions redefine marriage to be adult-centric, to the detriment of Utah’s children.

The brief quotes National Organization for Marriage founder and former chair Robert George, who said, “Thus the perennial challenge for societies throughout history has been to establish a means of formally linking mothers and fathers with their offspring so as to maximize the welfare of children, and hence of the community.”

George, however, is no social scientist. He is an ultra-conservative Princeton professor. He was a drafter of The Manhattan Declaration: A Call of Christian Conscience, which calls for civil disobedience if Christians feel they are being silenced or restricted from their religious liberties. According to a lawsuit, the declaration was used by the Beachy Amish-Mennonite Christian Brotherhood to help a Baptist woman kidnap her daughter from her former lesbian partner and move the daughter to Nicaragua.

The brief then goes on to quote four ancient books as well as a book by the anti-gay National Marriage Project director Brad Wilcox about how marriage is a social institution, by saying, “Indeed, this gendered and child-centered understanding of marriage has long been so ubiquitous, and considered so compelling by eminent authorities, that to cite and quote even a small percentage of those authorities could easily consume an entire book.”

Co-counsel Monte Neil Stewart, who helped write Amendment 3 and runs the anti-gay Marriage Law Foundation, is quoted for his 2008 book, Marriage Facts, as saying that social benefits generated by original meanings of words “dissipate or disappear” if a word’s meaning is changed.

Stewart, in his December 2012 brief in a Nevada same-sex marriage case, compared marriage equality advocates to white supremacists, in that white supremacists altered the definition of marriage to disallow mixed-race unions. Same-sex marriage advocates, he says, are similar in that they want to redefine marriage.


In their quote of Joseph Raz, the state once again fabricated its meaning. While the state says Raz was talking about “the law,” the quote is actually a discussion of “Perfectionist political action.”

Perfectionist political action may be taken in support of social institutions which enjoy unanimous support in the community in order to give them formal recognition, bring legal and administrative arrangements into line with them, facilitate their use by members of the community who wish to do so, and encourage the transmission of belief in their value to future generations. In many countries this is the significance of the legal recognition of monogamous marriage and prohibition of polygamy.” (Italics are what was removed from the state’s brief — interestingly, polygamy was removed.)

But Raz doesn’t truly believe in the tyranny of the masses. He goes on to say in the next paragraph that, “the view we are discussing assumes a rigoristic moral outlook, that is one allowing for only one morally approved style of life. That is why it is suspected that if some people pursue a different style of life from that practiced by those with political power, they will be persecuted. Perfectionism is, however, compatible with moral pluralism, which allows that there are many morally valuable forms of life which are incompatible with each other … If a plurality of incompatible, even rival, forms of life is valuable, then perfectionism would not lead to the suppression of forms of life which are not practiced by those in power.”

The absurd

The state then quotes a quip from Bertrand Russell, where he said, “But for children, there would be no need of any institution concerned with sex.”

But Russell also wrote in the same book, “Love as a relation between men and women was ruined by the desire to make sure of the legitimacy of children,” and, “Homosexuality between men, though not between women, is illegal in England, and it would be very difficult to present any argument for change of the law in this respect which would not itself be illegal on the ground of obscenity. And yet every person who has taken the trouble to study the subject knows that this law is the effect of a barbarous and ignorant superstition, in favor of which no rational argument of any sort or kind can be advanced.”

Why the state would quote from a book that also goes on to encourage intercourse before marriage, the legalization of pornography and the celebration of nudism baffles this writer.

Stop Misusing My Work

Further discussing the importance of mother-father parenting, the state quotes Kristin Anderson Moore in a 2002 Child Trends Research Brief, saying, “research clearly demonstrates that family structure matters for children, and the family structure that helps children the most is a family headed by two biological parents in a low-conflict marriage.”

But the authors of the brief have repeatedly said that marriage equality opponents are misquoting and misusing their work.

“The Child Trends brief in question summarizes research conducted in 2002, when same-sex parents were not identified in large national surveys,” president of Child Trends Carol Emig said. “Therefore, no conclusions can be drawn from this research about the well-being of children raised by same-sex parents.”

She added, “We have pointed this out repeatedly, yet to our dismay we continue to see our 2002 research mischaracterized by some opponents of same-sex marriage.”

The brief also quotes the ultra-conservative Witherspoon Institute and sociologist David Popenoe, whose work only examined the consequences of divorce, single parents, and stepfamilies — situations in which a heterosexual father was no longer involved in his children’s life — not same-sex parenting; and child development author Michael Lamb, who wrote 40 years ago about the need for a man and a woman in child-rearing, but has since testified for same-sex marriage in California’s Proposition 8 case.

Lamb testified that children do not require a male and a female parent to have a stable and healthy life growing up. Lamb stressed that childhood adjustment relied more on the relationships between the parents and the relationships the child has with their parents.

They also cited A. Dean Byrd, former president of the National Association for Research & Therapy of Homosexuality and a frequent speaker and author of conversion therapy to rid people of being gay or lesbian, and Benjamin Scafidi, of the anti-gay Institute for American Values.

Junk Science

In stating, “Studies also show that, even when they have two caregivers of the same sex, children who grow up without a father or a mother are socialized in a way that undermines their ability to function effectively in a dual-gender society,” they are actually talking about one study, which the publisher of the journal it was published in has since decided it shouldn’t have made print, and which no less than the American Psychological Association has declared as flawed. It has further been found that the timing of the article was rushed to get it published before the U.S. Supreme Court heard arguments on Prop 8 and DOMA.

The study by Mark D. Regnerus, How Different Are the Adult Children of Parents Who Have Same-Sex Relationships? was paid for by the anti-gay Witherspoon Institute. It purported to compare the responses of children raised by stable opposite-sex parents and those of children raised by stable same-sex parents. The truth is, however, the study lumped together the children all family types that include a gay parent — regardless of the family’s structure, history, marital status, etc. — and attempts to compare them to children raised in a “still-intact biological family.”

Regnerus, himself, cautioned against using the study to determine that the fact a child was raised by a gay parent was the cause of any differences in outcome.

“Organizations may utilize these findings to press a political program … that is not what data come prepared to do,” Regnerus wrote. “Implying causation here — to parental sexual orientation or anything else, for that matter — is a bridge too far.”

Yet the marriage equality opponents use this study at every turn.

Human Rights Campaign created a web site further explaining Regnerus’ work and its motivations at regnerusfallout.org.

An accompanying article in the same journal by Loren D. Marks was also cited in the state’s brief. It claims to have analyzed 59 studies used by the American Psychological Association in a brief on lesbian and gay parenting. A member of the journal’s review board, asked to review both Regnerus’ study (which he called “bullshit”) and Marks’ study wrote that the Marks paper was “a lowbrow meta-analysis of studies” that was “inappropriate for a journal that publishes original quantitative research.” He also said that Marks didn’t perform a true meta-analysis of the studies and instead simply wrote summaries of the results.

Decline in European Marriage

Utah’s brief goes on to say that same-sex marriage would cause a “substantial decline in the public’s interest in marriage” and cites a 2002 survey showing low support for marriage in European countries that currently allow same-sex marriage. What it does not show, however, is how that support has changed over time from before same-sex marriage until now.

In fact, the data from the study was taken in 2000, nine years before Sweden allowed same-sex marriage, three years before Belgium and one year before the Netherlands, all of which Utah’s lawyers cited.

The reason the state chose to use such data is nefarious at best.

Fertility Rates

The state calls it “striking that fertility rates and birthrates tend to be markedly lower in nations and states that have embraced same-sex marriage.” Their argument alludes to same-sex marriage as the cause of lower fertility rates, without any proof cited.

Yet, demographers have long known that fertility rates of more conservative states, like Utah, are much higher than liberal states, like Massachusetts.

Conservatives have larger families, marry earlier and have children earlier — all of which affect the average birthrate.

Since more liberal states are voting to allow same-sex marriage, of course those states will have lower birth rates.

Again, nefarious.


The state dedicates 11 pages to religious support of traditional marriage, erroneously saying that only five of the top 25 churches in Utah support same-sex marriages.

More importantly, state lawyers throw a fear argument into the mix, saying that the state would be pressured and perhaps agree, to force religious organizations (like LDS Family Services?) to stop all adoption and foster services if they won’t provide such services to gays, to revoke the tax-exempt status of anti-gay churches, to prosecute churches for refusing to perform same-sex weddings and to punish school teachers who won’t “endorse” same-sex marriage, to punish counselors for not counseling same-sex couples, and to force schools like BYU to house, hire and provide classes for gay and lesbian people.

And it is in the state’s interest to make sure none of that happens.

“The State’s interests in protecting religious freedom and minimizing religion-related civic conflicts are thus highly relevant to the constitutional inquiry.”

Public Strife

The state lastly argues that it has a “public welfare” interest in keeping “husband-wife marriage” because it is “deeply interwoven into the fabric of Utah life” and “preserving the traditional definition of marriage is essential to preserving social harmony in the State.”

“Redefining marriage would be a recipe for social and religious strife,” the legal team wrote.

In other words, blood will spill if gays can marry and the state can say, “I told you so.”

But the question this might raise is that, perhaps the government and religious organizations have created such an atmosphere that “the maintenance of domestic peace” may be a problem if the court rules to uphold Shelby’s ruling and same-sex marriages continue. This is, as I’ve said before, “perilously close” to admitting that the state and its largest religions have shown animus in how they treat its lesbian, gay, bisexual and transgender citizens.

“The risk of deep social division is at its apex when courts preempt democratic discourse and force major social changes on an unwilling populace,” the state’s brief continues.

However, to put your fears at ease, it should be noted that recent polls have shown that the majority, while it might be slim, of Utahns support outright same-sex marriage. A vast majority support some kind of legal recognition. And a vast majority of Utahns also support nondiscrimination laws such as the one proposed since 2008 by Equality Utah.

Settle down, everyone. It’s going to be fine.

Michael Aaron

Michael Aaron is the editor and publisher of QSaltLake. He has been active in Utah's gay and lesbian community since the early 80s and published two publications then and in the 90s.

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  1. I took the time to read the brief, and several links that were cited for attribution and support of their position. All I can say is that they'd better hope that the Court doesn't do the same. It also becomes apparent why Senate Majority Leader Neiderhauser's anti-discrimination bill was stalled until next year since the brief listed that as one of the unwanted consequences; be careful to keep the cart behind the horse, guys!

  2. Excellent Analysis and sourcing. A very worthwhile read, particularly for anyone wanting to understand the flawed super strategy of the State of Utah.

  3. Flawed at it's inception with dollars poured into California Prop 8, air headed to be put into state law and vacuous as a legal argument. Doomed at birth yet we will be paying the bill; you & I.

  4. Sadly you can point out facts to Republican's and "christian's" and "mormons" until you're blue in the face, they won't listen, they won't accept facts and for them they won't be happy until they have passed laws allowing them to imprison and or murder the LGBT community simply for being apart of it. That is the ultimate end game for these people. They are 100% driven by hatred for other human beings.

    Want proof?

    Utah refusing to enact legislation which would prevent discrimination against the LGBT community in the work place an housing, simply because it's a "hot topic" clearly shows the callas and hateful stance these people have against this community.

    These are the same people who'll also claim to "love and support" the LGBT community but "dislike their sin", would prefer them to be homeless and unemployed.

  5. So are you going to take my son away because his deadbeat dad has no desire to be a part of his life? Seems to me two loving parents in any combination would be so much more support, love and guidance which is what all of our children need.

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