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Same-sex marriage (SSM) in Utah:

Part 12: State of Utah asks for extension for
brief. Lawyer attempts to join lawsuit.
Family Research Center (FRC) files brief.
Comments on the FRC brief.

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This topic is continued from the previous essay.

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2014-JAN/FEB: Utah officials request 10 day extension to file opening brief. Hearing scheduled for APR-10:

The Tenth U.S. Court of Appeals had asked that the dates for opening briefs in the appeal of Kitchen v. Herbert be delivered on or before 2014-JAN-27. They had indicated that requests for extensions of time:

"... are very strongly discouraged, and will be considered only under extraordinary circumstances.

This put the Utah officials in a bind. They had to request an extension because they were only able to hire outside counsel to handle their involvement in the case on JAN-16 because of "the requirements of state procurement law." 1

The state attorneys filed their opening argument on FEB-03, just hours before the extended deadline. Their argument was based on the common conservative belief that the optimal environment for raising children is in a family led by the children's mother and father. This belief was rejected by Thomas McInery, president of the American Academy of Pediatrics last June when he said:

"If a child has two loving and capable parents who choose to create a permanent bond, it€™s in the best interest of their children that legal institutions allow them to do so." 2

The state's belief has also been rejected by all major national professional psychological, psychiatric, and social worker organizations, but is supported by the deeply flawed Regneurus study in Texas, and by most social and religious conservatives. The state's brief says that same-sex marriage would lead to "real, concrete risks to children" because not having both a mother and father leads to emotional damage to the children. The state also feels that allowing same-sex marriages would lead to reduced birth rates which would lead to a demographic and economic crisis.

The state's recently hired attorney, Gene Schaerr, wrote 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."

Shannon Minter, legal director for the National Center for Lesbian Rights, disagreed, saying:

"The law should support all families, not make it harder for some families to take care of themselves and their children. Our [federal] Constitution does not tolerate laws that single out a group of people in order to treat them unequally."

The brief also quotes the United States v. Wilson case decided by the U.S. Supreme Court in 2013-JUN. It noted that individual states have:

"... broad authority to regulate the subject of domestic relations. ... Different states have struck a different balance than Utah's, and Windsor held that choice is protected by the states' 'historic and essential authority to define the marital relation' free from 'federal intrusion.' ... Because the district court did not give proper deference to the choice of Utah's citizens, the state requests that this court reverse." 3

The Tenth U.S. Circuit Court of Appeals in Denver, CO scheduled a hearing for 2014-APR-10. A very similar case from Oklahoma will be heard by the same court exactly a week later on APR-17.

Attorneys for the three lesbian and gay couples who are plaintiffs in this lawsuit have until FEB-25 to respond to the state's argument. 4

The 10th Circuit court hears appeals from six states: Oklahoma, Colorado, Kansas, New Mexico, Wyoming, and Utah. The most likely future path for this lawsuit is for decisions by the three-judge panel in both the Oklahoma and Utah cases will be appealed to the full Circuit Court, and perhaps to be eventually appealed to the U.S. Supreme Court for a final ruling that could have nation-wide implications for same-sex marriage.

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2014-FEB-03: Lawyer attempts to take part in oral arguments before the Appeals Court on behalf of three additional Utah couples:

Lawyer Roberta A. Kaplan represented Edith Windsor in the case United States v. Windsor. This was the case in which the U.S. Supreme Court declared a major part of the federal Defense of Marriage Act unconstitutional during mid-2013.

She currently represents three same-sex couples in Utah. She asked to be able to participate in oral arguments before the 10th U.S. Circuit Court of Appeals. One couple includes Douglas Wortham and Nicholas Nero. The other two couples were married during 2013-DEC or 2014-JAN when same-sex couplesin Utah. They are: Lynn Beltran and Claudia O€™Grady; and Stanford Rovig and Charles Fluke.

Kaplan said that the trial before U.S. District Court Judge Robert J. Shelby did not address all of the problems associated with Utah's marriage ban. Her motion said, in part:

"In a case of this significance and importance, which has the potential to shape the trajectory of the quest of gay people for full civil equality, having greater participation by affected parties and greater airing of the issues can only benefit this court by providing the widest range of arguments and perspectives available."

Kaplan asked both the plaintiffs in the case and the State of Utah for their consent to intervene. She was rejected by both. They were also rejected by the Court of Appeals. Kaplan is expected to file an Amicus Curia brief instead. 5

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2014-FEB-06: Family Research Council (FRC) files a court brief supporting Utah's ban on same-sex marriage:

The FRC is a conservative Christian advocacy group that has been listed as an active anti-gay hate group by the Southern Poverty Law Center. 6,7 The FRC filed a amicus curiae brief with the Court of Appeals in which they argue that the state of Utah has very practical reasons why their decision to ban same-sex marriage is not required to conform to the equal protection clause of the 14th Amendment to the U.S. Constitution. 8 They ask that the Court of Appeals reverse the ruling by District Court Judge Robert J. Shelby and thus preserve marriage inequality in the state.

Paul Benjamin Linton, who wrote the brief, argues that:

"The principal defining characteristic of marriage, as it has been understood in our 'history, legal traditions and practices,' is the union of a man and a woman. ... Laws that treat men and women equally, and do not subject them to different restrictions or disabilities, cannot be said to deny either men or women the equal protection of the laws. Amendment 3 treats men and women equally: Both men and women may marry someone of the opposite sex; neither may marry someone of the same sex." 9

Back in the 1960's, lawyers could have used the same line of reasoning to argue that anti-miscegenation laws did not discriminate against mixed-race engaged couples. These laws existed in Florida and over a dozen contiguous U.S. states. They prohibited interracial couples from marrying. The lawyers could have argued that the laws did not discriminate against a black woman who was engaged to a white man. All the woman would have to do would be to break off the engagement, to tell the man that she loves and to whom she was prepared to make a lifetime committment to leave her and not contact her in the future, and looking for a black man to marry. No big deal (satire).

Some readers of the Deseret News article posted their personal comments. Essentially all favored marriage equality. A few are:

  • "USU - Logan" wrote: "The truth is, Amendment 3 treats straight people and gay people unequally. A straight person can marry the one he or she loves; but a gay person can not do so, simply because they are of the same gender. The opponents of marriage equality have failed again and again in court to justify the rationale. I don't see how the same old argument will magically prevail in the 10th circuit this time."

  • Stephen Dickey wrote: " 'History, legal traditions and practices,' do not legitimize the continued discrimination in laws like Amendment 3. The Supreme Court also noted in the Loving case that the long tradition of anti-miscegenation laws would not save it from constitutional scrutiny, either. Its amazing how similar the arguments are being pushed in this anti-discrimination case as they were in the 60s. It looks like the Virginia marriage rights case will be the first to be heard by the Supremes, making the Oklahoma and Utah cases moot."

  • "Dobby" wrote: "If Adam can marry Eve then Sally should be able to marry Eve. This is the same nonsense they tried before Loving vs. Virginia. It did not work then, and it will not work now."

  • "Heilig" wrote: "I would like to recommend reading the entire brief filed by the attorneys for Utah. 10 ... By reading the entire document, one can gain a much better understanding of the powerful and compelling reasons Utah has for maintaining the traditional definition of marriage."

  • "DanO" wrote: "You're known by the company you keep. Family Research Council is recognized as a hate group. With friends of the court like that like that, who needs enemies. Good luck on trying to show there is no animus behind Amendment 3. 9

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This topic continues in the next essay.

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Scottie Thomaston, "State officials in Utah same-sex marriage appeal ask Tenth Circuit for 10-day extension to file opening brief," Equality on Trial, 2014-JAN-17, at:
  2. Amanda Holpuch, "Utah defends same-sex marriage ban in appeal opening arguments," The Guardian, 2014-FEB-04, at:
  3. Kirk Mitchell, "Utah appeals brief says gay marriage issue is state decision," The Denver Post, 2014-FEB-04, at:
  4. "Utah files opening argument in defense of gay marriage ban," Fox News, 2013-FEB-04, at:
  5. Brooke Adams, "Court rejects intervention by 3 Utah couples in gay marriage appeal," The Salt Lake Tribune, 2014-FEB-03. at:
  6. "Intelligence Files: Family Research Council," Southern Poverty Law Center, 2013, at:
  7. "Intelligence Report, "18 anti-gay groups and their propaganda," Southern Poverty Law Center, Winter 2010, Issue #140, at:
  8. Paul B. Linton, "Brief of amicus curiae..." Family Research Council, 2014-FEB-06, at:
  9. Dennis Romboy, "Family Research Council weighs in on Utah gay marriage case," Deseret News, 2014-FEB-06, at:
  10. "Appellate Case: 13-4178," State of Utah, 2014-FEB-03, at:
  11. "10th Circuit: Will Banning Same-Sex Couples from Marrying Violate the Constitution?," The Rainbow Times, 2014-APR-08, at:

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Copyright © 2014 by Ontario Consultants on Religious Tolerance
Originally written: 2014-JAN-18
Latest update: 2014-APR-08
Author: B.A. Robinson

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