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Utah files appeal to US Supreme Court

On Tuesday the State of Utah filed its Petition for Writ of Certiorari with the Supreme Court of the United States, asking them to reevaluate the decision of the Tenth Circuit Court of Appeals in the case of Kitchen v. Herbert.  On June 26, the Tenth Circuit upheld the December 20, 2013 ruling of United States Third District Judge Robert Shelby, who struck down Utah’s prohibition against same-sex marriage as unconstitutional. Utah is the first state to make a direct appeal to the U.S. Supreme Court since last year’s Windsor ruling.

The arguments offered by the state are the same ones that have been rejected by court after court around the nation in the two years following the U.S. Supreme Court Windsor (DOMA) decision.  They boil down to three basic issues:  children, chaos and states’ rights.

Because laws shape culture, a court order that requires every state to rewrite its marriage definition to reflect the view that marriage is more about adult emotions than rearing and raising children will likely exacerbate the belief — already accepted by more than half of young adults — that it is no big deal to have a child outside of marriage.  Such a belief leads naturally to more out-of-wedlock births, a result that is undeniably harmful to children and society generally. Yet that is one very real possible consequence (among others) of redefining marriage.

The state’s attorneys added a new twist, essentially polarizing this discussion into two camps, those who favor retaining the opposite-sex model of marriage and those who believe that marriage should be a free-for-all.

But there are two predominant and competing visions that have been advanced in state referenda across the country.  Those who favor redefining marriage as the union of any two or more persons see the institution from a primarily adult-centered perspective. … Those who wish to retain the opposite-sex marriage model believe that government has no legitimate interest in formally recognizing mere loving relationships, whether opposite-sex or same-sex.

They argue that these people are concerned with uniting children with their biological parents, and when that is not possible, with a mother and a father.  Yet no evidence is produced to explain how a same-sex marriage ban creates such an environment, nor why it is a compelling state interest to do so.

As with previous filings, the state’s attorneys chose to include additional offensive terminology, “But if the Tenth Circuit really means that a person’s ‘choice’ is the only marriage limit, then virtually every line historically drawn around marriage must fail.  The right to marry whomever one chooses would thus override not only a limitation based upon sexual complementariness, but also the usual blanket limitations based on age, consanguinity, consent, or number of participants.”

The state argues that this case should be reviewed by the Supreme Court for a couple of reasons. They argue that the issue has been “percolating” through the courts for over 40 years now, hearkening back to the Baker v. Nelson decision of the 1970’s.  This “percolation,” they assert, combined with dozens of cases and erratic use of stays, “has created legal chaos.”

They argued that the clarity of this case makes it the perfect vehicle for the Supreme Court to weigh in on this issue. Unlike other cases, this is limited strictly to a state (and its voters) enacting laws to define marriage, without other issues involved.  The District and Appellate courts both rejected claims of animus in the  law-making, and there aren’t other issues that would muddy the waters.   “In sum,” they argue, “a vast cloud covers this entire area of the law, and only this Court can lift it.  This case provides an ideal vehicle to do just that.”

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