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Religious Tolerance logo

Same-sex marriage (SSM) in Utah:

Part 1

"And then there were 18 states."

A federal Court ruling in case "Kitchen et al v.
Herbert et al."
found that Utah's ban on SSMs is
unconstitutional. Same-sex marriages begin.

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"If marriage means everything, it means absolutely nothing." Dr. James C. Dobson, of Focus on the Family.

bullet "A loving man and woman in a committed relationship can marry. Dogs, no matter what their relationship, are not allowed to marry. How should society treat gays and lesbians in committed relationships? As dogs or as humans?" A posting to an Internet mailing list; used by permission of the author.

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On election day in 2004-NOV, voters in 11 states passed an amendment to their state Constitution that restricted marriage only to the union of one woman and one man. Some went further and banned civil unions as well. Utah was one of the latter. Utah's Amendment 3 reads:

  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.

The first clause bans same-sex marriage. The second clause bans civil unions. Together, they appeared to ban any form of recognition of the relationships of loving, committed same-sex couples. Such couples are to be recognized only as "legal strangers" -- as roommates who simply lived together, without any acknowledgement of their relationships and without any protections for themselves and their children.

The amendment was passed by 66% of Utah voters. Similar amendments were all passed in the remaining 10 states by substantial majorities.

At the time that the amendments were voted upon, about 58% of American voters nationally opposed SSM. Utah has been and remains a very religiously and politically conservative state, partly because over 60% of its adults are members of The Church of Jesus Christ of Latter-day Saints -- the main Mormon denomination. A 2004 poll taken by the Center for the Study of Elections and Democracy at Brigham Young University revealed that 54% of Utah residents disapproved of any legal recognition of the relationships of same-sex couples, whether it consisted of same-sex marriage,or civil union. In 2013, that opposition has dropped to 29%! It is most unlikely that Amendment 3 would be passed if it were voted upon today, if we assume that the voters fully understood the scope of the amendment.

Surprisingly, Utah courts ruled in 2006 that Amendment 3 does not ban domestic partnerships. The court allowed Salt Lake City's limited domestic partnership program to continue.

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Who has the authority to define marriage?

The U.S. Constitution very clearly assigns the authority to define whom may marry to the individual states -- not to the federal government as in most other countries, like Canada, the UK, New Zealand, most countries in Europe, etc. This was confirmed in 2013-JUN by the U.S. Supreme Court in its ruling for Windsor v. United States. Different states have set up different criteria for marriage. Some allow first cousins to marry even though it doubles the chance that the children of opposite-sex parents will have a major genetic disorder. States also differ in the minimum age for marriage, and whether younger couples can marry if they have parental permission. As of 2013-DEC-24, 18 states and the District of Columbia permit same-sex couples to marry; 32 states do not.

However, individual states do not have unlimited freedom to define who is eligible to marry. For example, in 1967, Florida and fifteen contiguous states in the American South East prohibited interracial couples from marrying. That year, the U.S. Supreme Court declared in Loving v. Virginia that interracial marriages were legal across the entire U.S. Today, there is a widespread belief that a ban on same-sex marriages violates the equal protection and equal process phrases of the U.S. Constitution's 14th Amendment, and that Utah's Amendment 3 is unconstitutional.

In early 2011, public opinion towards same-sex marriage appears to have reached a tipping point, as an increasing number of states and the District of Columbia have legalized SSM. By early 2013, national polls show that about 54% of American adults support SSM. 83% of voters believe that same-sex marriage will be available in all 50 states within 5 to 10 years. 75% of voters -- including 56% of Republicans -- believe that same-sex couples have a constitutional right to marry.

Some commentators predict that if and when:

  • A majority of states allow SSM, and

  • The majority of American adults live in states where SSM is legal, and

  • Public opinion polls regularly show that more than 60% of voters support SSM,

that a case like Utah's "Kitchen et al v. Herbert et al" will make it all the way to the U.S. Supreme Court who will legalize SSM across the entire country, perhaps about the year 2020.

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2013-MAR to DEC: The Utah federal court case "Kitchen et al v. Herbert et al.":

On 2013-MAR-25, three same-sex couple filed a lawsuit in the United States District Court for the District of Utah. It is titled "Kitchen et al v. Herbert et al". 7 Derek Kitchen is one of the six plaintiffs. Gary R. Herbert (R) is listed as the main defendant in his capacity as Governor of Utah. Three couples are seeking to have Utah’s Amendment 3 be declared unconstitutional because it violates the Due Process and Equal Protection clauses of the U.S. Constitution. 7 One of the couples had already been married in Iowa, and were seeking to have their marriage recognized in Utah. The other two couples were single and seeking to marry in Utah.

Hearings were held on DEC-04.

  • The state argued that there was "nothing unusual" for a state to enforce policies that encourage "responsible procreation" and the "optimal mode of child-rearing." This is a common argument promoted in recent years by religious conservatives. They define "Responsible Procreation" as procreation by a married opposite-sex couple in which the child/children are raised by their genetic mother and genetic father. All other forms of child raising are regarded as "irresponsible procreation." That might include parenting by an unmarried couple, parenting by a same-sex couple, procreation achieved by in-vitro fertilization or artificial insemination, birth by a surrogate mother, or addition of a child to a family by adoption. Many religious conservatives believe that successful child raising can only be achieved if the child knows and is raised by their genetic father and mother.

  • Plaintiffs' attorney Peggy Tomsic contended that the policy is "... based on prejudice and bias that is religiously grounded in this state." Utah is unique among U.S. states in that slightly over 60% of its population are members of The Church of Jesus Christ of Latter-day Saints -- the LDS or Mormon church. 1 Like almost all other conservative Christian denominations, the LDS church is unalterably opposed to marriage equality because of its interpretation of about 7 biblical passages. More liberal Christian denominations interpret these biblical passages and others very differently, and conclude that the Bible supports marriage for loving, committed same-sex couples.

    During 2008, the LDS Church joined with the Roman Catholic Church to raise tens of millions of dollars and successfully promote Proposition 8 in California. This was the citizen initiative that banned same-sex marriage from 2008-NOV until it was reversed by the U.S. Supreme Court in mid-2013.

On 2013-DEC-20, federal judge Robert J. Shelby of the U.S. District Court for Utah issued a 53 page ruling declaring Amendment 3 to be unconstitutional under the Due Process and Equal Protection clauses in the 14th Amendment of the U.S. Constitution. 7 According to Wikipedia:

"The ruling prevents the State from enforcing Sections 30-1-2 and 30-1-4.1 of the Utah Code and Article I, § 29 of the Utah Constitution to the extent these laws prohibit a person from marrying another person of the same sex. 2

Thus, Utah became the 18th state to have attained marriage equality.

Unknown at the time, this ruling was the first of 30 consecutive decisions on same-sex marriage in various states to be published by state trial courts, federal District Dourts or U.S. Circuit Courts of Appeals between 2013-DEC-30 and 2014-AUG-04. All 30 have been in favor of same-sex marriage. Most are stayed pending appeals to higher courts. There are on the order of 70 active lawsuits attempting to legalize marriage for same-sex marriages in various states which are expected to be ruled upon in the future. Eventually, one or more is expected to be appealed to the U.S. Supreme Court. Their ruling would have far-reaching impact across the U.S.

Niraj Chokshi and Carol Morello of The Washington Post said that the ruling:

"... is particularly significant because it represents the first time a federal court has ruled on the constitutionality of same-sex marriage bans since the Supreme Court struck down [Section 3 of] the federal Defense of Marriage Act in June. The ruling will serve as a precedent for other states facing challenges to their bans, and it sets the stage for a [U.S.] Supreme Court decision that would apply to all 50 states.

'This case could decide the issue of same-sex marriage across the United States of America,' said Clifford Rosky, a University of Utah professor of law and expert on lesbian, gay, bisexual and transgender legal issues." 8

Judge Shelby wrote in his ruling that the state had not shown that allowing same-sex marriages would affect opposite-sex marriages in any way. He wrote:

"In the absence of such evidence, the State's unsupported fears and speculations are insufficient to justify the State's refusal to dignify the family relationships of its gay and lesbian citizens." 3

He also wrote:

"The state's current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason. Accordingly, the court finds that these laws are unconstitutional." 4

Prohibiting loving, committed same-sex couples from marrying has other negative effects. Such couples are refused access to both state benefits, grants, protections and privileges of marriage. They are also cut off from 1,138 federal benefits available only to married couples.

He repeats a very common error: assuming that all same-sex couples are composed either of two gays or two lesbians. In reality, one or both partners in a same-sex relationship sometimes has a bisexual orientation.

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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. "How many people in Utah are Mormons?", undated, at:
  2. "Utah Constitutional Amendment 3," Wikipedia, as on 2013-DEC-22, at:
  3. "Utah Gay Marriage Ban Struck Down As Unconstitutional," Huffington Post, 2013-DEC-20, at:
  4. Saba Hamedy, "Utah gay marriage ruling brings mixed emotions," Los Angeles Times, 2013-DEC-21, at:
  5. "Judge strikes down Utah's same-sex marriage ban as unconstitutional," Fox News - Politics, 2013-DEC-2, at:
  6. Brooke Adams, "Federal judge strikes down Utah ban on same-sex marriage," The Salt Lake Tribune, 2013-DEC-20, at:
  7. Text of "Kitchen et al v. Herbert et al," Scribd, 2013-DEC-20, at:
  8. Niraj Chokshi and Carol Morello, "Utah’s battle over gay marriage is a sign of a larger shift," Washington Post, 2013-DEC-23, at:

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Home > Religious info. > Basic > Marriage > SSM > SSM sub menu > Utah > here

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Copyright © 2013 & 2014 by Ontario Consultants on Religious Tolerance
Originally written: 2013-DEC-22
Latest update: 2014-AUG-05
Author: B.A. Robinson

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