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32 – Kitchen v. Herbert
3978:
“Salt Lake residents Derek Kitchen and Moudi Sbiety want to get married, but not in California or Iowa or one of the other 10 states that allow gay marriage.
‘We don’t plan to get married in any other state but Utah,’ Sbiety said. ‘We don’t want to live in any other state. Our friends are here. Our families are here. Utah is home and we can’t see ourselves living anywhere else.’…
Two momentous U.S. Supreme Court decisions last week on the Defense of Marriage Act and California’s Proposition 8 bring the gay marriage issue to the forefront in states that only recognize marriage as the legal union of a man and a woman.
In Utah, it will play out in federal court where Sbiety and Kitchen are plaintiffs in a federal lawsuit challenging a Utah voter-approved constitutional amendment that defines marriage as between a man and a woman. But state lawmakers might have some decisions ahead of them, while advocates and opponents of same-sex marriage promise to make their voices heard.…
In a poll released Friday of local political insiders, the online newsletter Utah Policy asked whether Utah would ever reverse the constitutional ban on same-sex marriage.
Only 13 percent of Republicans see a reversal in the next decade or longer, compared to 39 percent of Democrats, most of whom see it taking less than 10 years. Both Republican and Democratic insiders largely agree it would take a lawsuit, though 35 percent of Republicans and 8 percent of Democrats say Utah will never change the law.…
Peggy Tomsic, an attorney for Kitchen and Sbiety, said the Supreme Court’s decision recognizes that states may define marriage but not if it violates due process and equal protection rights under the federal Constitution.
Utah lawmakers and residents have already staked out a firm position against gay marriage that shows no sign of moving as a result of last week’s high court rulings.
‘The Legislature is not going to anytime soon propose a repeal of Amendment 3,’ said Utah Senate President Wayne Niederhauser, R-Sandy. ‘It’s not perpetual, but it’s pretty close.’
‘I don’t think there’s any palate at this point to change the (state) Constitution. I think that’s going to be with us for a long time,’ he said. ‘If any change happens, it’s going to happen through a court process, in my opinion.’…
Chad Griffin, president of the Human Rights Campaign, said last week in Salt Lake City that his organization won’t stop fighting until all 50 states recognize same-sex marriage, predicting it will come about in five years.…” (Dennis Romboy, “Gay marriage: What’s next for Utah?” Deseret News, July 3, 2013)
4101:
“On Friday, motions for summary judgment were filed in a federal court case calling for the invalidation of Amendment 3, Utah’s ban on same-sex marriage.…” (Paul C. Burke, Brett L. Tolman and John W. Mackay, “Marriage equality will arrive in Utah soon,” Salt Lake Tribune, October 12, 2013)
3987:
“Traditional marriage encourages responsible child bearing and the best parenting, according to state attorneys defending Utah’s definition of marriage.
Those are among the arguments the state made in court documents asking a federal judge to throw out a lawsuit challenging a Utah voter-approved constitutional amendment that defines marriage as between a man and a woman.
At the same time, lawyers for three gay and lesbian couples want U.S. District Judge Robert Shelby to strike down Amendment 3 and bar the state from enforcing its ‘marriage discrimination’ laws. They contend the law is unconstitutional under the due process and equal protections clauses of the 14th Amendment.
The first hearing in the case is scheduled for Dec. 4.
Gay couple Derek Kitchen and Moudi Sbeity and lesbian couple Laurie Wood and Kody Partridge filed the lawsuit in March after Salt Lake County denied them marriage licenses. Karen Archer and Kate Call, who were legally married in Iowa, joined the suit because Utah does not recognize their marriage as valid.…” (Dennis Romboy, “Utah defends marriage law against challenge, saying it promotes better parenting,” Deseret News, October 21, 2013)
3993:
“‘The state’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in doing so, demean the dignity of these same sex couples for no rational reason. Accordingly, the court finds that these laws are unconstitutional,’ the ruling said.…
‘The court agrees with Utah that regulation of marriage has traditionally been the province of the states, and remains so today,’ Shelby wrote in his 53-page opinion. But he said any state regulations must still comply with the U.S. Constitution.…” (Jennifer Dobner, “U.S. judge strikes down Utah’s gay marriage ban,” Reuters, December 20, 2013)
2617:
“The Church of Jesus Christ of Latter-day Saints issued the following statement Friday after a court ruling on same-sex marriage in Utah:
The Church has been consistent in its support of traditional marriage while teaching that all people should be treated with respect. This ruling by a district court will work its way through the judicial process. We continue to believe that voters in Utah did the right thing by providing clear direction in the state constitution that marriage should be between a man and a woman, and we are hopeful that this view will be validated by a higher court.”
(“Church Statement on Court Ruling Regarding Same-Sex Marriage in Utah,” LDS Newsroom, December 20, 2013)
3998:
“[Judge Robert] Shelby said the state failed to show that allowing same-sex marriages would affect opposite-sex marriages in any way.…” (Brady McCombs, “Utah Gay Marriage Ban Struck Down As Unconstitutional,” HuffPost Politics, December 20, 2013)
3999:
“The essence of judicial tyranny is when a single, unelected federal judge declares the laws and constitution of an entire state null and void with an opinion clothed in the barest of legal precedent.
Late on Friday afternoon, U.S. District Judge Robert J. Shelby overstepped judicial bounds, ignored the weight of settled precedent and insulted Utah’s electorate by striking down Amendment 3 to Utah’s Constitution, the provision that defines marriage as between one man and one woman.
How marriage is defined in American society is admittedly one of the great legal and political contests of our day. But in that contest, one would hope for fair play. Friday’s decision was made without the benefit of a trial. Acting on a motion for summary judgment, the decision rests on one judge’s creative interpretation of precedent.…
Because this was decided without the benefit of a trial of the facts, the court feels free to dismiss as irrational the state’s contention (and by extension the voters’ contention) that there are prudential reasons for moving cautiously when adjusting the marital norms that have served society for millennia, that there may be something uniquely important for the benefit of children about supporting the biologically intact family, that religious liberties might require special consideration given the role of marriage in religious teaching and practice.
Gays and lesbians are not deprived of any rights they are due in a liberal democracy when a state, like Utah, through open democratic processes insists that marriage is between a man and a woman.…” (Scott G. Winterton, Deseret News Editorial, “In our opinion: Judicial tyranny,” Deseret News, December 20, 2013)
4369:
“A federal judge Friday struck down Utah’s voter-approved constitutional amendment — which defines marriage as the union of one man and one woman — finding that it violates rights to due process and equal protection as set forth in the 14th Amendment to the U.S. Constitution.
Within hours, Salt Lake County District Attorney Sim Gill confirmed that, in light of the ruling, he saw no reason to prohibit Salt Lake County Clerk Sherrie Swensen from issuing marriage licenses to same-sex couples, and as many as 120 gay couples descended on the Salt Lake County Clerk’s Office to obtain licenses, with many staying to marry on the spot.…” (Emiley Morgan, “Marriage licenses being issued to gay couples in Utah,” Deseret News, December 20, 2013)
4370:
“Nationally, public opinion on the issue has flipped in the past decade. In 2003, 55 percent opposed gay marriage while 37 percent supported it, according to a Washington Post-ABC News poll. Today, the sides have virtually switched, with 58 percent supporting it and 36 percent opposing, according to a Washington Post-ABC News poll in March.…
Utah’s large Mormon population is particularly opposed to homosexuality, as well. Nationally, nearly two in three Mormons in 2011 said society should discourage homosexuality, while only about one in three people overall said so, according to a Pew poll. Nearly three-fifths of Utah’s residents are Mormon, according to a 2007 Pew Religion & Public Life survey.…
Dabakis said the ruling is more about equal civil rights and should not be seen as a threat to the sanctity of Mormon teachings.
‘I’m just comfortable that we need to continue to explain to people that this is for civil marriage,’ he said. ‘This has nothing to do with religious marriage. This is no threat to religion. Religion is a different thing.’” (Niraj Chokshi, “Utah’s same-sex marriage ban is unconstitutional, judge rules,” Washington Post, December 20, 2013)
4403:
“A federal judge in Utah on Friday struck down the state’s ban on same-sex marriage, saying the U.S. Constitution offers the same equal protection and due process rights to same-sex individuals to marry the person of their choice that it gives heterosexual individuals.
‘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,’ wrote U.S. District Judge Robert J. Shelby in the 53-page decision. ‘Accordingly, the court finds that these laws are unconstitutional.’
In the ruling, Shelby enjoined the state from enforcing two different statutes that ban same-sex marriage as well as Amendment 3 to the state’s constitution, approved by Utah voters in 2004.” (Brooke Adams, “Federal judge strikes down Utah ban on same-sex marriage,” Salt Lake Tribune, December 20, 2013)
4372:
“The Church of Jesus Christ of Latter-day Saints issued a statement saying it hoped a higher court would overturn Judge Shelby’s ruling. And The Deseret News, which is owned by the Mormon Church, criticized the ruling for creating ‘a new class of same-gender applicants deemed “married” under the Utah Constitution.’…” (Jack Healy, “Gay Couples in Utah, Surprised but Glad, Rush to Marry After Ruling Permits It,” New York Times, December 21, 2013)
4373:
“The Utah Attorney General’s Office issued a statement late Friday night, saying it discussed with U.S. District Judge Robert Shelby ‘a stay of his decision prohibiting Utah’s definition of marriage as between a man and a woman.’
‘Judge Shelby declined to stay his decision on the court’s own accord and would not entertain an oral motion to stay. As a result, the attorney general’s office is filing a written motion to stay, which the judge has said he will resolve on an expedited basis,’ the statement read.…
Brett Tolman, a former U.S. attorney for Utah who along with attorney Paul Burke submitted an amicus brief to the Supreme Court on the federal Defense of Marriage Act on behalf of Utah Pride Center, said Shelby’s ruling is ‘the correct result. It is a proper analysis of the Constitution.’
Tolman and Burke do not represent the three Utah couples who challenged Amendment 3.
‘(The ruling) is very strongly worded. It’s definitive. It will make for an interesting decision for those who want to review it in terms of whether or not they appeal or not,’ Tolman said, referring to the strong language on disparate treatment.
Numerous state bans on same-sex marriage have been tossed since the Supreme Court overturned DOMA, but the Utah decision may be particularly significant,’ Tolman said.
‘There are still legal battles to be made, but for Utah to be at the forefront in determining a ban to be unconstitutional is a very big statement when it comes to the rest of the country,’ he said.…” (Emiley Morgan and Marjorie Cortez, “Gay couples wed after federal judge overturns Utah’s same-sex marriage ban,” Deseret News, December 21, 2013)
4410:
“Until Friday, the Church of Jesus Christ of Latter-day Saints had stayed silent as Utah’s federal court too up same-sex marriage.
But after U.S. District Court Judge Robert Shelby’s ruling became public, it issued a statement in support of Amendment 3 and expressing hope the ban ‘will be validated by a higher court.’ And on Saturday, the LDS Church-owned Deseret News ran a front page editorial headlined ‘Judicial Tyranny’ that lambasted his decision and its reliance on U.S. Supreme Court Antonin Scalia’s ‘sardonic dissent’ in a high court ruling over the summer in United States v. Windsor.” (Brooke Adams, “After same-sex marriage ruling, Utah seeks to maintain status quo,” Salt Lake Tribune, December 21, 2013)
4405:
“A federal judge in Utah—who last week issued a controversial ruling allowing same-sex marriages—on Monday denied the state’s request for a stay.” Marissa Land and Brooke Adams, “Judge denied Utah AG’s request to halt same-sex marriages,” Salt Lake Tribune, December 22, 2013)
4417:
“U.S. District Judge Robert J. Shelby had been on the bench just six months when he was assigned Kitchen v. Herbert in March.…
He was nominated to the federal bench by President Barack Obama in November 2011 and was confirmed by the U.S. Senate on Sept. 22, 2012. During the process, Sen. Mike Lee, R-Utah, described Shelby as ‘pre-eminently qualified’ and predicted he would be ‘an outstanding judge.’” (Brooke Adams, “Robert J. Shelby: A look at the judge who made gay marriage legal in Utah,” Salt Lake Tribune, December 22, 2013)
4000:
“Gov. Gary Herbert’s first statement after U.S. District Judge Robert J. Shelby’s decision striking down Utah’s gay-marriage ban was a tell-tale sign. He said he was directing state lawyers to ‘determine the best course to defend traditional marriage within the borders of Utah.’
The ‘borders of Utah’? Do we really want to have our own set of individual rights separate from other Americans? Shelby’s decision recognized Utah’s right to define marriage, but he also made clear that the definition still has to fit within the U.S. Constitution. Amendment 3 doesn’t.
Shelby could have extended the battle by holding a trial on Amendment 3. Instead, after reviewing filings from both the state and the three couples challenging Amendment 3, he concluded the law interferes with the couples’ rights of due process. It was the first federal ruling striking down a state ban on same-sex marriage since the U.S. Supreme Court killed the Defense of Marriage Act (DOMA) in June. It won’t be the last.
So unanticipated was the decision that the state apparently didn’t even have paperwork ready to ask the judge to stay the decision pending an appeal. With Amendment 3 discarded and no stay in place, county clerks were suddenly deluged with same-sex couples Friday afternoon.
The governor later said the decision caused ‘a chaotic situation in our state that requires an expedited judicial resolution.’ What that really means is he didn’t like the expedited resolution Shelby gave him, so he’s calling it chaos. Scenes from the clerk’s office Friday showed joyful pandemonium, but it was hardly chaos.…
In continuing to pursue Amendment 3 after the Supreme Court ruled, Utah ignores the rest of the DOMA decision, which states that DOMA violated the Fifth Amendment’s due process by putting same-sex couples ‘in an unstable position of being in a second-tier marriage.’
Shelby used the 14th Amendment to apply that same logic to Utah’s law. Passed after the Civil War to keep Southern states from denying rights to African-Americans, the 14th Amendment requires that states can’t have a different standard for due process than the federal government has.…
The governor is determined to continue the quixotic fight for Amendment 3, and he has plenty of supporters in that. But the rest of us should move on to the healing. Gay marriage proponents should resist further antagonism or gloating and instead engage in caring and understanding dialogue.…” (“Editorial: Utah should stand with the nation and accept gay marriage,” Salt Lake Tribune, December 23, 2013)
1386:
“A fresh battle over same-sex marriage in conservative Utah, the heart of Mormon country, has offered gay-rights advocates hope that their effort has reached a national tipping point.…
Judge Robert J. Shelby’s 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 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 Supreme Court decision that would apply to all 50 states.…
One of the strongest indicators of the broader cultural shift on the issue is the growing acceptance of legal recognition of gay unions among Mormons.
According to a recent poll by the Center for the Study of Elections and Democracy at Brigham Young University, 54 percent of Mormons now favor civil unions for same-sex couples, and opposition to any legal recognition has dropped from 69 percent in 2004 — when state voters approved the ban — to 38 percent now.…
But while its opposition to same-sex marriage may be unchanged, the Mormon Church’s statements on homosexuality are shifting, albeit in nuanced ways. On Mormonsandgays.com, a church Web site started a year ago outlining doctrine on homosexuality, the church states that being attracted to someone of the same sex is not a sin, though acting on it is still considered sinful.…
Thirty years ago, being homosexual was in itself grounds for excommunication, said Greg Prince, a national director of Affirmation, a support group for LGBT Mormons and their families and friends. Now, he said, there are gay Mormon missionaries who are open about their sexual orientation; so long as they remain celibate, the church does not care, he said.…
In 2004, the year Utah voters approved a measure defining marriage as between a man and a woman, 54 percent of all Utah residents said they disapproved of any legal recognition of a gay couple’s relationship, including civil unions. Now, that opposition has dropped to 29 percent.…
An estimated 47,000 to 63,000 residents of Utah are gay, lesbian or bisexual, according to a 2010 analysis of census data done by the Williams Institute, a think tank at UCLA’s law school that studies gay issues and law. About 3,800 identified themselves in census surveys as unmarried partners. More than half live in or around Salt Lake City.” (Niraj Chokshi and Carol Morello, “Utah’s battle over gay marriage is a sign of a larger shift” Washington Post, December 23, 2013)
4375:
“Shelby’s ruling represents the first time a federal court has ruled on the constitutionality of same-sex marriage bans since the Supreme Court struck down the Defense of Marriage Act, [Cliff] Rosky said from the Salt Lake County Clerk’s office where he officiated the marriages of two same-sex couples, including that of [Kara] Weiss and [Brittany] Espy.…” (Niraj Chokshi, “Utah’s same-sex couples can keep getting married, for now,” Washington Post, December 23, 2013)
4378:
“A federal appeals court ruled Tuesday that gay marriages can continue in Utah, denying a request from the state to halt same-sex weddings that have been occurring at a rapid rate since last week.
The 10th U.S. Circuit Court of Appeals’ rejection of Utah’s request for an emergency stay marks yet another legal setback for the state.…” (Associated Press, “Federal court: No halt to gay marriages in Utah,” Washington Post, December 24, 2013)
4411:
“Same-sex marriage has been legal in Utah for less than a week, and already, the state is running out of options to stop it.
Late Tuesday, the 10th Circuit Court in Denver denied Utah’s request to put a halt to the marriages, hundreds of which have been happening throughout the state since Friday.” (Marissa Lang, “10th Circuit Court denies same-sex marriage stay,” Salt Lake Tribune, December 24, 2013)
4379:
“Attorneys and proponents say this is the civil rights issue for the current generation, comparing the scenes of gay couples marrying at county clerks offices to blacks breaking racial barriers in the 1960s.
More state rulings in favor of gay marriage could be in the works in 2014. The thinking goes, if it can happen in ultra-conservative Utah, it can happen anywhere.…” (Mark Sherman, “Gay marriage’s latest frontier: State courts,” Deseret News, December 25, 2013)
4414:
“There were about 3,900 gay couples in Utah as of 2010, and they were raising approximately 2,900 children, according to court documents filed by the plaintiffs who challenged the state’s same-sex marriage ban. The Williams Institute, based at UCLA’s School of Law, estimated earlier this year that Salt Lake City has the highest percentage of same-sex couples raising children than any other metro area in the country.” (Brooke Adams, “Scholars: With marriage, tradition has changed over time,” Salt Lake Tribune, December 28, 2013)
4404:
“The state of Utah asked the U.S. Supreme Court on Tuesday afternoon to put same-sex marriages in Utah on hold while it appeals a lower court ruling in the 10th Circuit Court of Appeals, saying each marriage that occurs is ‘an affront’ to the state’s and the public’s interest ‘in being able to define marriage through ordinary democratic channels.’” (Brooke Adams, “Utah takes next step in effort to stop same-sex marriage,” Salt Lake Tribune, December 31, 2013)
4408:
“Utah made a subtle shift in its arguments in defense of opposite-sex marriage in a stay application to the U.S. Supreme Court filed Tuesday.
Gone is any mention of procreation.
Instead, the state talks about child-rearing without discussing how children may be produced.” (Brooke Adams, “Procreation argument dropped in stay application,” Salt Lake Tribune, January 2, 2014)
2604:
“When Judge Robert Shelby overturned the voter-approved ban of same-sex marriages in Utah on December 20th, people across the United States were justifiably surprised. Shelby is a registered Republican, he attended Utah State University, and was endorsed by Republican Senators Orrin Hatch and Mike Lee. Utahns aren’t known for their left-leaning views, and Utah State isn’t known for churning out progressives. When a politico has the endorsement of LDS Republicans, they generally aren’t going to make history with liberal decisions. Shelby ruled, however, that the ban on same-sex marriage in Utah violated the constitutional rights of same-sex couples and overturned the ban, opening the doors for same sex couples throughout the state to wed.…” (“Utah’s appeal of same-sex marriage ruling ‘outright waste,’” Q Salt Lake, January 6, 2014)
4380:
“The U.S. Supreme Court on Monday put same-sex marriages in Utah on hold, granting the state’s request for a stay while it appeals a ruling that laws banning such marriages are unconstitutional.
The court said the stay would be in place until the 10th Circuit Court of Appeals in Denver makes a decision on Utah’s appeal.…” (Brooke Adams and Lindsay Whitehurst, “Supreme Court halts Utah gay marriages pending appeal,” Salt Lake Tribune, January 7, 2014)
2392:
“Shelby was born in Fort Atkinson, Wis., in 1970. He moved to Logan, Utah to attend Utah State University…
Republican Orrin G. Hatch, a seven-term Utah senator, recommended him for a federal judgeship, calling him an experienced lawyer ‘with an unwavering commitment to the law.’ Senator Mike Lee, a Tea Party Republican, said Shelby was ‘pre-eminently qualified’ and predicted he would be an outstanding judge.…
Gov. Gary R. Herbert (R), called him an ‘activist federal judge’…
Former colleagues said they did not know his religious background.…
‘I believe it is the judge’s responsibility to reach decisions based exclusively on the application of established precedent to the specific facts presented,’ he wrote.
But this month, when it was time to decide a case brought by three gay couples challenging Utah’s ban on same-sex marriage, Judge Shelby appeared to be moved by their stories. In his 50-page ruling, he repeated the stories of how each couple met and fell in love, referring to them not only as plaintiffs or by last name, but as Derek and Moudi, Karen and Kate, Laurie and Kody.…” (“Who is Judge Shelby?” Q Salt Lake, January 9, 2014)
4120:
“Following recent court actions bearing on same-sex marriage, the First Presidency and the Quorum of the Twelve Apostles today sent the following instructions and guidance to congregational leaders throughout the United States. Leaders were asked to share this information with their members in appropriate settings.
On December 20, 2013, a federal district judge in Salt Lake City issued an order legalizing same-sex marriage in Utah, striking down century-old state laws and a state constitutional amendment that defined marriage exclusively as between a man and a woman. The United States Supreme Court has put that ruling on hold pending consideration of the issue by an appellate court. During the interval between the district court ruling and the Supreme Court stay, numerous same-sex marriages were performed in Utah. Legal proceedings and legislative action in some other states and countries have given civil recognition to same-sex marriage relationships.
As we face this and other issues of our time, we encourage all to bear in mind our Heavenly Father’s purposes in creating the earth and providing for our mortal birth and experience here as His children. ‘God created man in his own image, in the image of God created he him; male and female created he them. And God blessed them, and God said unto them, Be fruitful, and multiply, and replenish the earth.’…
Changes in the civil law do not, indeed cannot, change the moral law that God has established. God expects us to uphold and keep His commandments regardless of divergent opinions or trends in society. His law of chastity is clear: sexual relations are proper only between a man and a woman who are legally and lawfully wedded as husband and wife.…
Consistent with our fundamental beliefs, Church officers will not employ their ecclesiastical authority to perform marriages between two people of the same sex, and the Church does not permit its meetinghouses or other properties to be used for ceremonies, receptions, or other activities associated with same-sex marriages. Nevertheless, all visitors are welcome to our chapels and premises so long as they respect our standards of conduct while there.
While these matters will continue to evolve, we affirm that those who avail themselves of laws or court rulings authorizing same-sex marriage should not be treated disrespectfully. The gospel of Jesus Christ teaches us to love and treat all people with kindness and civility—even when we disagree.…” (“Church Instructs Leaders on Same-Sex Marriage,” LDS Newsroom, January 10, 2014)
4383:
“The Church of Jesus Christ of Latter-day Saints issued its strongest statement yet on the same-sex marriage situation in Utah, reminding its lay leaders across the country that they may not perform marriages or allow them to take place on church property.
The two-page statement asked congregational leaders to share the message from the First Presidency and Quorum of the Twelve Apostles with members ‘in appropriate settings.’
The LDS Church quoted a passage from Genesis about marriage and reproduction, which it said illustrated that marriage between a man and a woman was instituted by God and ‘central to his plan for his children and for the well-being of society.’
‘Changes in the civil law do not, indeed cannot, change the moral law that God has established,’ the statement said. ‘God expects us to uphold and keep his commandments regardless of divergent opinions or trends in society.’
It said the contentious situation calls for civility on both sides while the lawsuit proceeds through court.…” (Brooke Adams, “Hundreds gather to ask Utah governor to stop same-sex marriage appeal,” Salt Lake Tribune, January 10, 2014)
4384:
“The Supreme Court’s order last week halting same-sex marriages in Utah was two sentences long. It was provisional and cryptic, and it added nothing to the available information on where the Supreme Court stands on the momentous question of whether there is a constitutional right to same-sex marriage.
Utah’s briefs were another matter. They were expansive, and they set out the current arguments for denying gay and lesbian couples the right to marry.
In the trial court, the state had argued that restricting marriage to a man and a woman would make heterosexual couples act more responsibly when they had sex. In the Supreme Court, the state threw that ‘responsible procreation’ argument overboard in favor of one focused on ‘optimal parenting.’ By the time it filed its final brief on Jan. 6, the state had introduced a fresh argument, drawn from the Supreme Court’s decisions on affirmative action.
The state’s first argument, made before Judge Robert J. Shelby of the Federal District Court in Salt Lake City, was that ‘the traditional definition of marriage reinforces responsible procreation.’ The government benefits that come with marriage, the state said, encourage opposite-sex couples to form stable families ‘in which their planned, and especially unplanned, biological children may be raised.’
Judge Shelby agreed, saying the argument was true as far as it went. Encouraging marriage would make it more likely that the children of heterosexual couples would have parents who were married.
But there was no reason, the judge went on, to think that allowing same-sex couples to marry would change that. To the contrary. By forbidding gay and lesbian couples to marry, he wrote, ‘the state reinforces a norm that sexual activity may take place outside of marriage.’
In the Supreme Court, state officials changed tack and pressed a different argument, one built on a contested premise.
‘A substantial body of social science research confirms,’ the brief said, ‘that children generally fare best when reared by their two biological parents in a loving, low-conflict marriage.’
Lawyers for the couples challenging Utah’s ban on same-sex marriage responded that the assertion ‘is not true.’ For evidence, they cited ‘the scientific consensus of every national health care organization charged with the welfare of children and adolescents,’ and listed nine such groups. The view of the groups, the challengers said, ‘based on a significant and well-respected body of current research, is that children and adolescents raised by same-sex parents, with all things being equal, are as well-adjusted as children raised by opposite-sex couples.’
Utah responded that it would not be swayed by ‘politically correct trade associations,’ referring to, among others, the American Academy of Pediatrics, the American Medical Association and the American Psychiatric Association. ‘We are not ruled by experts,’ the state’s brief said.
As with the argument about responsible procreation, it is possible to accept the state’s position that it is best for children to be raised by their biological parents and yet wonder how that would be more likely to happen by denying gay and lesbian couples the right to marry. Utah argued that the two things are linked.
‘By holding up and encouraging man-woman unions as the ‘preferred’ arrangement in which to raise children,’ the state said, ‘the state can increase the likelihood that any given child will in fact be raised in such an arrangement.’
Judge Shelby had rejected the argument as illogical and counterproductive. Utah’s ban, he wrote, ‘does not make it any more likely that children will be raised by opposite-sex couples.’ But it certainly demeans and humiliates the thousands of children being raised by same-sex couples in the state, he said.
In the Supreme Court, Utah refined its argument.
‘The state does not contend that the individual parents in same-sex couples are somehow ‘inferior’ as parents to the individual parents who are involved in married, mother-father parenting,’ the state said.
But, drawing on Supreme Court decisions endorsing the value of diversity in deciding who may attend public universities, the state now said it was pursuing ‘gender diversity’ in marriages. ‘Society has long recognized that diversity in education brings a host of benefits to students,’ the brief said. ‘If that is true in education, why not in parenting?’ The Supreme Court did not take a position on Utah’s several shifting arguments, saying only that it would stay Judge Shelby’s decision while an appeals court considers the case. That will happen over the next couple of months, and the state’s position may evolve further.
Or perhaps it will return to the candor of Stanford E. Purser, a lawyer with the state attorney general’s office. Judge Shelby asked him on Dec. 4 whether letting same-sex couples marry was of ‘any relevance at all’ to the state’s interests in encouraging opposite-sex couples to marry.
‘It may end up that there is no difference,’ Mr. Purser said. ‘It may end up that there is. We just simply don’t know.’” (Adam Liptak, “Utah’s 3 Arguments, and Counting, Against Gay Marriage,” New York Times, January 13, 2014)
4385:
“A new poll for The Salt Lake Tribune shows that Utahns’ views on same-sex couples’ relationships have dramatically shifted in the decade since voters amended the state’s constitution to prohibit them from receiving any legal recognition.
Residents are now evenly split on whether same-sex couples in Utah should be allowed to get state-issued marriage licenses — 48 percent for and 48 percent against — and nearly three-fourths (72 percent) said same-sex couples should be allowed to form civil unions or domestic partnerships in lieu of marriage.…
The results reflect a remarkable turn since 66 percent of Utahns who participated in the 2004 general election approved Amendment 3, which limited civil marriage to a man and a woman and barred any state recognition of other relationships such as civil unions or domestic partnerships.…” (Brooke Adams, “Poll: Utahns evenly split on same-sex marriage,” Salt Lake Tribune, January 15, 2014)
4386:
“The Utah Attorney General’s Office has hired Gene C. Schaerr to lead a team of attorneys in the state’s defense of its constitutional amendment prohibiting same-sex marriage.
Attorney General Sean Reyes said Schaerr, a Utah native, is an ‘elite’ appellate and Supreme Court expert and ‘understands our unique history and community.’ The pick also pleased one of Utah’s most conservative think tanks.…
Schaerr has agreed to offer his services at a discounted rate and will cap the fee arrangement at $200,000 for the 10th Circuit Court phase of the proceedings, the statement said. However, Schaerr also has been hired as a fellow on marriage and family law issues at the conservative Sutherland Institute.…” (Brooke Adams, “Utah AG picks outside counsel in same-sex marriage fight,” Salt Lake Tribune, January 16, 2014)
4419:
“The story of Restore Our Humanity — the group that raised the money, hired the attorneys, found the plaintiffs and pushed a lawsuit through Utah courts — begins with one man who was elated that the country elected President Barack Obama and pissed off by the ‘professional haters.’…
When Judge Vaughn Walker ruled against Proposition 8, and for gay marriage, Lawrence’s mind started ticking.
‘Judge Walker’s decision on Prop 8 was brilliant: Prop 8 was indefensible. I couldn’t understand why somebody wasn’t doing the same thing with Amendment 3,’ he said.
Utah’s turn
He decided the largest obstacle in overturning Amendment 3 wasn’t the religious community or the toxic political climate.
‘It’s the damned apathy,’ he said. ‘People are so fucking willing to accept the status quo and accept ‘that’s the way things are’ and it isn’t going to change. Bullshit. Apathy is the enemy. The others are just inconveniences.’
‘Well, I think we kicked apathy’s ass around the block,’ he jokes.
He realized that the current LGBT advocacy organizations, which he said were so dependent upon public support and, therefore, unwilling to take risks, couldn’t effectively make a full-scale assault on Amendment 3.
‘I knew the only way this could be accomplished was with an honest to {insert deity here} grass roots effort,’ he said. ‘Someone who could get things started without worrying about public opinion and with the attitude of ‘I don’t gotta take no shit from nobody’,’ he said.
Grass roots
Lawrence started a Facebook group named Restore Our Humanity and started talking with people.
‘The original group consisted of Bob and Melissa Henline, a straight ally friend of mine named Nate, Griffin Jenkins and Clyde Peck,’ he said. ‘Then things started falling into place.’
Lawrence and the group began a search for a legal team to take on the case. Matthew Spencer came on to help with PR. Annette Day, Kate Call, Karen Crist and David Saari joined as board members.
They eventually found James Magleby, Peggy Tomsic and Jennifer Fraser Parrish of the small local law firm, Magleby & Greenwood, P.C.
The legal team began drawing arguments and a complaint, and the rest of the board began seeking plaintiffs. And money. They knew it was going to take a lot of money.
‘The vast majority of our support has come from the business community, and especially Dr. Patrick Byrne of Overstock.com,’ Lawrence said. ‘I felt it was a good idea to approach the business community since this action could have a major impact on the business community.’
‘I have to admit, though, the response has been dismal. There have been boycotts called against Utah since 2008 because of the state’s influence in Prop 8 in California,’ Lawrence said. ‘I approached the entire Utah ski industry and was quite taken back by the lack of interest and, even more, lack of support from the Utah Ski Industry. The hospitality industry has been fair and responsive.’
Lawrence and the team struggled to gain financial interest from many community organizations and frequent donors to lesbian, gay, bisexual, transgender and ally causes.
And then, the ruling came down.
Ruling: Anti-gay laws are unconstitutional
‘Since the ruling, we have seen interest from a few of the national organizations. We are still negotiating with some of these. Some of them have conditions that we find unacceptable,’ Lawrence said.
Lawrence says that he was not expecting support from certain larger Utah organizations while the case was in the trial phase.
‘Because of the nature of the litigation and the path it had to follow, it may appear that we have not benefited from the support of some of our local organizations, namely Equality Utah and The Pride Center. This is wrong,’ Lawrence said. ‘These organizations have been standing ready and made themselves available to us at exactly the right time and they have been fully supportive and onboard.’
‘This whole process has gone far beyond what we at Restore Our Humanity are qualified and capable of,’ Lawrence continued. ‘With the support and the expertise of Brandie Balken and Cliff Rosky at E.U. with the support of The Pride Center, we are now positioned and ready to take Kitchen v. Herbert to the national level and I have no doubt that the coalition that we have become will continue to change history and help bring marriage equality to the entire country.’
‘SCOTUS, here we come,’ Lawrence yelled.…” (“Restore Our Humanity founder Mark Lawrence,” Q Salt Lake, January 16, 2014)
4388:
“In an email purportedly sent to his colleagues, Gene Schaerr made it clear why he was leaving his lucrative post as a partner at a prestigious Washington, D.C., law firm to defend Utah’s laws barring same-sex marriage: his Mormon faith.…
The Human Rights Campaign (HRC) took umbrage with Schaerr for citing his personal religious beliefs as the primary reason for taking on the case.
‘It’s alarming that the reason Gene Schaerr gives for taking this position has nothing to do with the U.S. Constitution or the legal issues at play,’ Fred Sainz, HRC’s vice president of communications, said in a statement. ‘Schaerr’s entire motivation for taking this anti-equality case is to impose a certain religious viewpoint on all Utahns — and that’s wrong. When you become an attorney, you take an oath to uphold the U.S. Constitution, not any particular religious doctrine.’
Utah, Sainz noted, did not raise any religious-freedom arguments before U.S. District Court Judge Robert J. Shelby, who ruled Dec. 20 that Amendment 3’s ban on same-sex marriage was unconstitutional.…” (Brooke Adams, “Why is Utah’s hired gun fighting gay marriage? His Mormonism,” Salt Lake Tribune, January 22, 2014)
2777:
“The gay rights group Human Rights Campaign (HRC) has posted an exit memo by a BigLaw attorney who left his firm so he could fight gay marriage full-time in Utah.…
I have accepted that position so that I can fulfill what I have come to see as a religious and family duty: defending the constitutionality of traditional marriage in the state where my church is headquartered and where most of my family resides. I leave with full confidence in the scriptural promise that ‘all things work together for good to them that love God.’ And I invoke His blessings on the Firm, and on each of you.” [Gene Schaerr]
(Erin Fuchs, “Lawyer’s Religious Memo Reveals Why He Quit To Fight Gay Marriage Full-Time,” Business Insider, January 23, 2014)
1378:
“In an email purportedly sent to his colleagues, Gene Schaerr made it clear why he was leaving his lucrative post as a partner at a prestigious Washington, D.C., law firm to defend Utah’s laws barring same-sex marriage: his Mormon faith.
The leaked email was first posted by Elie Mystal on the Above The Law blog. In it, Schaerr said he was taking a temporary position with the Utah attorney general’s office.
‘I have accepted that position so that I can fulfill what I have come to see as a religious and family duty: defending the constitutionality of traditional marriage in the state where my church is headquartered and where most of my family resides,’ Schaerr said in the Jan. 17 email to co-workers at Winston & Strawn.…
The Human Rights Campaign (HRC) took umbrage with Schaerr for citing his personal religious beliefs as the primary reason for taking on the case.
‘It’s alarming that the reason Gene Schaerr gives for taking this position has nothing to do with the U.S. Constitution or the legal issues at play,’ Fred Sainz, HRC’s vice president of communications, said in a statement. ‘Schaerr’s entire motivation for taking this anti-equality case is to impose a certain religious viewpoint on all Utahns — and that’s wrong. When you become an attorney, you take an oath to uphold the U.S. Constitution, not any particular religious doctrine.’
Utah, Sainz noted, did not raise any religious-freedom arguments before U.S. District Court Judge Robert J. Shelby, who ruled Dec. 20 that Amendment 3’s ban on same-sex marriage was unconstitutional.…
[Paul] Mero [president of the conservative Sutherland Institute] disclosed last week that Schaerr also has been hired as an institute fellow who will write policy papers for the Salt Lake City-based think tank. Mero wouldn’t disclose what role the institute played in Schaerr’s selection but said he was the ‘right guy’ for the job, one who has ‘traditional marriage and the natural family’ as part of his DNA.…” (Brooke Adams, “Why is Utah’s hired gun fighting gay marriage? His Mormonism,” Salt Lake Tribune, January 31, 2014)
1375:
“Utah attorneys seeking to overturn a federal court decision that struck down a state ban on gay marriage have argued in appeals papers that prohibiting same-sex unions is crucial to safeguarding the best interests of children.…
‘As between mutually exclusive models of marriage, the man-woman model is simply the one the state and its people believe is best for children,’ Utah state attorneys said in filings submitted late on Monday to the 10th U.S. Circuit Court of Appeals.
The court brief argued that risks to children from same-sex marriage include the emotional toll of growing up without a father or mother because their parents would be of the same gender. It also suggested birthrates in Utah might decline due to adults opting for same-sex unions instead of procreating.…
[Cliff Rosky] said the American Pediatric Association and American Psychiatric Association and similar groups reject the contention that gay parents do not raise healthy, well-adjusted children.…” (Jennifer Dobner, “Utah state attorneys argue children at risk from gay marriage,” Reuters, February 4, 2014)
2390:
“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.
Impotence
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.’…
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.…
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.…
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.…
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.’…” (Michael Aaron, “News analysis: Utah same-sex marriage brief is a cut-and-paste from the ultra-conservative agenda,” Q Salt Lake, February 5, 2014)
2266:
“A coalition of religious organizations has come together to urge a federal appeals court to uphold same-sex marriage bans in Utah and Oklahoma, saying unions between a man and woman are best for children, families and society.
The argument was made in a 42-page brief filed Monday afternoon to a Denver-based court reviewing cases that could reverse gay-marriage bans in Utah and Oklahoma.
Lawyers for The Church of Jesus Christ of Latter-day Saints and the U.S. Conference of Catholic Bishops wrote the brief, which was signed by the Ethics and Religious Liberty Commission of the Southern Baptist Convention and the Lutheran Church – Missouri Synod.
‘Our respective religious doctrines hold that marriage between a man and a woman is sanctioned by God as the right and best setting for bearing and raising children,’ it says. ‘We believe that children, families, society, and our nation thrive best when husband-wife marriage is upheld and strengthened as a cherished, primary social institution.’…” (Brady McCombs, “LDS church weighs in on gay marriage,” [Provo] Daily Herald, February 11, 2014)
1374:
“While the LDS Church has been involved in same-sex marriage debates in California and Hawaii, it initially remained on the sidelines as the legal fight played out on its home turf. Asked why, a church spokesman said in a Dec. 6 email to The Salt Lake Tribune that the faith ‘does not typically file amicus briefs in district court.’
But the stakes apparently changed dramatically with Shelby’s ruling and an appeal that could eventually reach the Supreme Court.…” (Brooke Adams, “LDS Church, other faiths say traditional marriage is crucial,” Salt Lake Tribune, February 12, 2014)
1335:
“And though Utah poll figures supporting same-sex marriage have not historically been as high as the national average, polling since the overturn of the state’s marriage ban show support for the right of same-sex couples to wed to be at an all-time high of 48%—20% higher than just two years ago.…” (Matthew Breen, “Mormons, God and Gays,” Advocate, March 5, 2014)
2606:
“It appears attorneys for the state of Utah have moved into shrill-speak in desperation that they may lose the fight to keep the anti-gay Amendment 3 and other laws on Utah’s books.
The state’s latest and final brief before oral arguments in April is so awash with hyperbole, I wouldn’t be surprised that in their last edit they didn’t remove a thousand exclamation points from earlier drafts.
‘The sky is falling!!!!’
In the very first paragraph, the legal team says the argument comes down to gays and lesbians feeling demeaned vs. the total destruction of marriage culture in the state. Gays are sad vs. society is doomed.
You may think I’m now hyperbolizing, but let’s keep going.
The very next paragraph calls Judge Robert Shelby’s ruling ‘an unprincipled judicial wrecking ball hurtling toward an even more important arena of traditional State authority.’…” (“Utah’s lawyers on same-sex marriage: When you think you are losing an argument, hyperbolize,” Q Salt Lake, March 18, 2014)
4390:
“Late last year, a federal judge declared that Utah’s voter-approved ban on same-sex marriage, Amendment 3, was unconstitutional. Late last week, another federal judge declared that Michigan’s voter-approved ban on same-sex marriage, the Michigan Marriage Amendment, was unconstitutional.
That is, of course, an increasingly common event. What makes the Michigan case worthy of note is that Michigan’s Federal District Judge Bernard Friedman did something that didn’t happen in Utah. He put on a full-blown trial.
Friedman heard the experts testify, took their measure, watched as they were cross-examined, sometimes harshly, by the other side.
After the judge had taken all that in, he not only ruled against the ban, he also ruled that the ‘experts’ who testified in favor of keeping it were, basically, liars.
At least two of the so-called experts that Friedman labeled ‘entirely unbelievable and not worthy of serious consideration,’ are also experts that the state of Utah and its high-priced special counsel are relying on to tell the 10th Circuit Court of Appeals that it should overturn the ruling of Utah Federal Judge Robert J. Shelby and reinstate the ban.
One of those hired guns is Mark Regnerus, a sociologist from the University of Texas whose work, the judge ruled, was not objective science but fabrications commissioned by right-wing interest groups. Regnerus and his work have been disowned by his own academic colleagues.
Another is Douglas Allen, whose analysis the judge dismissed as fatally flawed. He looked at the lives of children who moved from one family to another and, sometimes, to another, absurdly concluding that it was the fact that some of the households included same-sex couples that left many of those children falling behind their peers in school.
He also testified that he thinks homosexuals are going to hell.
Judge Friedman, properly, put much more store in the advice of experts who told him that stability, not sexuality, is crucial to a child’s healthy development. And the legal recognition of the same-sex marriages will provide stability to the lives of the growing number of children who will, whether governments like it or not, grow up in such households.
The judges of the 10th Circuit — and, when the case eventually gets there, the U.S. Supreme Court — will no doubt notice that some of the so-called experts upon whose wisdom Utah is basing its defense of Amendment 3 are widely considered to be charlatans.
Utah should realize that it has no case, and give it up.” (Editorial: “Amendment 3’s hired guns backfire on Utah,” Salt Lake Tribune, March 26, 2014)
2397:
“A last-minute letter to the 10th Circuit Court of Appeals is recanting its use of a controversial study that is used by anti-gay organizations to say same-sex parents are inferior to heterosexual parents.
In the Wednesday letter, Gene Schaerr — Utah’s hired gun representing the state in its appeal of Judge Shelby’s ruling that Amendment 3 is unconstitutional — admits that, due to ‘sample limitations,’ the ‘Regnerus study cannot be viewed as conclusively establishing that raising a child in a same-sex household produces outcomes that are inferior to those produced by man-woman parenting arrangements.’
Oral arguments are scheduled to happen Thursday in Denver.
University of Texas sociologist Mark Regnerus has testified before courts for states defending their ban on gay marriage. He was the leader of a study that screened thousands of people, ages 18 to 39, and found roughly 250 who said they grew up in a house where a mother or father eventually had a same-sex relationship.
He found those 250 were more likely to have problems — welfare dependence, less education, marijuana use — than young adults from stable families led by heterosexuals. But he later acknowledged that his study didn’t include children raised by same-sex couples in a stable relationship.
The results ignited a blast of criticism when they were published in an academic journal in 2012.
‘We wish to emphasize the very limited relevance to this case of the comparison addressed by Professor Regnerus,’ Schaerr writes. ‘As the State’s briefing makes clear, the State’s principal concern is the potential long-term impact of a redefinition of marriage on the children of heterosexual parents. The debate over man-woman versus same-sex parenting has little if any bearing on that issue, given that being raised in a same-sex household would normally not be one of the alternatives available to children of heterosexual parents.’
The editor of the journal that published the study has since acknowledged his regret for including it. The university opened an investigation about possible scientific misconduct, but closed it early in the process.
The study was financed by the New Jersey-based Witherspoon Institute, which says its mission is to help the public understand the ‘moral foundations’ of democratic societies.
The American Psychological Association has said there’s no scientific basis for believing that gays and lesbians are unfit parents based on sexual orientation. But Regnerus believes it’s too early for sweeping statements.
‘We aren’t anywhere near saying there’s conclusive evidence’ that children with same-sex parents grow up with no differences when compared to kids with heterosexual parents, he said.” (“Utah recants controversial same-sex parenting study from brief on eve of oral arguments,” Q Salt Lake, April 9, 2014)
4391:
“Following the 10th Circuit Court of Appeals’ ruling Wednesday that Utah cannot deny citizens a marriage license or refuse to recognize their marriage based on gender, The Church of Jesus Christ of Latter-day Saints released the following statement.
‘The Church has been consistent in its support of marriage between a man and a woman and teaches that all people should be treated with respect. In anticipation that the case will be brought before the U.S. Supreme Court, it is our hope that the nation’s highest court will uphold traditional marriage,’ according to mormonnewsroom.org.
The LDS Church is among five religious organizations that filed an amicus brief in February outlining why each believes ‘marriage between a man and a woman is sanctioned by God as the right and best setting for bearing and raising children.’…” (Emily Eyring, “LDS Church issues statement regarding overturned Utah marriage amendment,” Deseret News, June 25, 2014)
4392:
“The Utah case marks the first time that a federal appellate court has struck down a same-sex marriage ban. It is among several cases nationwide at that stage, and it is assumed that one of those will eventually make its way to the U.S. Supreme Court.…” (Marjorie Cortez, “Utah plans to appeal appellate court’s ruling on same-sex marriage to U.S. Supreme Court,” Deseret News, June 25, 2014)
4394:
“Outlawing same-sex marriage violates citizens’ rights, a federal appeals court said Wednesday in a historic ruling that rejected Utah’s assertion that marriage between a man and woman best suits children and procreation.
By upholding a Utah judge’s decision to strike down the state’s ban on same-sex marriage, a three-member panel of the 10th Circuit Court of Appeals in Denver became the first appeals court in the nation to rule on the issue.
The appeals court set a precedent by finding that voter-approved bans on same-sex marriage — such as Utah’s Amendment 3 — violate the constitutional rights of same-sex couples to equal protection and due process.
But the court immediately stayed the implementation of its decision pending an anticipated appeal to the U.S. Supreme Court — an appeal that will be initiated, the Utah Attorney’s General Office confirmed Wednesday.…
The fact that Wednesday’s ruling is the first on the issue from a federal appeals court makes it especially important, said Carl Tobias, a judicial appointment expert and professor at the University of Richmond School of Law.
‘It just has more authority [than a district court ruling] because it’s a three-judge panel in a higher court,’ Tobias said. ‘Other appeals court will be influenced by [the 10th Circuit Court’s] reasoning.’…
Tobias said that when ‘strict scrutiny’ is applied in this case, the state’s arguments — centered largely around how same-sex marriage affects child-rearing and religious freedom — don’t hold up.
‘You give strict scrutiny to the state’s reasoning, [the judges] just found that none of them could withstand that level of scrutiny,’ Tobias said.
The majority opinion attacked the state’s arguments, which relied on a link between marriage and procreation. They said the argument failed because opposite-sex couples who do not or cannot procreate are still allowed to marry.’
Utah citizens may choose a spouse of the opposite sex regardless of the pairing’s procreative capacity,’ the opinion reads. ‘The elderly, those medically unable to conceive and those who exercise their fundamental right not to have biological children are free to marry and have their out-of-state marriages recognized in Utah, apparently without breaking the ‘conceptual link between marriage and procreation.’
The judges pointed out that the only reference to reproduction in Utah’s marriage law is a provision that allows first cousins to marry if they are over 65 years old, or are over 55 and cannot reproduce.…” (Jessica Miller, “10th Circuit Court: Utah’s same-sex marriage ban is unconstitutional,” Salt Lake Tribune, June 26, 2014)
4137:
“The battle to legalize same-sex marriage saw a historic victory this week when the United States Court of Appeals for the 10th Circuit in Denver became the first federal appeals court in the nation to declare that same-sex couples have a ‘fundamental right‘ to wed.…
But the prime factor behind the explosion of lawsuits challenging state bans, as well as the many court rulings rejecting discrimination in both red and blue states, is United States v. Windsor — the Supreme Court’s landmark ruling striking down the Defense of Marriage Act’s denial of federal benefits to lawfully married same-sex couples. The 10th Circuit decision in the Utah case included many references to the Defense of Marriage Act ruling.
Utah’s attorney general, Sean Reyes, has said he intends to appeal the ruling to the Supreme Court.…” (The Editorial Board, “A Milestone for Same-Sex Marriage,” New York Times, June 27, 2014)
4395:
“For Utah, it’s Supreme Court or bust.
After losing its appeal and becoming the first state in which a federal appeals court found marriage to be a fundamental right of all people — gay, straight or otherwise — Utah is done biding its time.
The state wants resolution and finality. And it wants it now.
This week, Utah bypassed another appeal to the full 10th Circuit.
The state will instead appeal directly to the U.S. Supreme Court ‘in coming weeks,’ the attorney general’s office said.…” (Marissa Lang, “Experts: Supreme Court may not take Utah’s same-sex marriage appeal,” Salt Lake Tribune, Jul 13, 2014)
4138:
“Utah will go to the U.S. Supreme Court to challenge a federal appeals court’s ruling that upheld same-sex marriage, calling state bans on such unions unconstitutional.
Wednesday was Utah’s deadline to seek a full-court review by all 12 judges on the 10th Circuit bench, also known as an en banc review.
But, according to a statement from the attorney general’s office, the state will instead push onward to the U.S. Supreme Court.
‘To obtain clarity and resolution from the highest court, the Utah Attorney General’s Office will not seek en banc review of the Kitchen v. Herbert Tenth Circuit decision, but will file a Petition for Writ of Certiorari to the United State Supreme Court in the coming weeks,’ the attorney general’s office wrote in a statement. ‘Attorney General Sean Reyes has a sworn duty to defend the laws of our state. Utah’s Constitutional Amendment 3 is presumed to be constitutional unless the highest court deems otherwise.’…
In order to give Utah time to file its widely anticipated appeal, the court immediately stayed the implementation of its ruling.…
A time line of Utah’s same-sex marriage saga
Nov. 2, 2004 • Utah passes Amendment 3, which states that ‘marriage consists only of the legal union between a man and a woman.’
March 25, 2013 • Three couples file a lawsuit alleging Utah’s Amendment 3 violates the 14th Amendment to the U.S. Constitution.
June 26, 2013 • The U.S. Supreme Court strikes down the Defense of Marriage Act, which barred gay marriage, and declines to rule on California’s Proposition 8, clearing the way for same-sex marriage in the Golden State.
Dec. 20, 2013 • U.S. District Judge Shelby strikes down Utah’s Amendment 3 as unconstitutional, opening the door to same-sex marriage in the state. More than 1,000 same-sex couples obtain marriage licenses during the next 17 days.
Jan. 6, 2014 • The U.S. Supreme Court grants the Utah Attorney General’s Office request for a stay, ending same-sex marriage in Utah pending the 10th Circuit Court outcome of the state’s appeal of Shelby’s ruling.
March 12, 2014 • Utah decides to place same-sex marriages performed before the stay ‘on hold,’ rather than fully recognize or refuse to recognize them.
May 19, 2014 • U.S. District Judge Dale A. Kimball orders Utah to honor and recognize all same-sex marriages performed while Judge Shelby’s ruling was in effect.
June 6, 2014 • The 10th Circuit Court of Appeals temporarily stayed Kimball’s ruling, halting any movement toward marriage recognition. (The case remains on hold.)
June 25, 2014 • The 10th Circuit Court of Appeals rules that states outlawing same-sex marriage are in violation of the U.S. Constitution, but the court issues an immediate stay to its own ruling, anticipating an appeal by Utah to the U.S. Supreme Court.” (Marissa Lang, “Utah appealing gay-marriage case directly to Supreme Court,” Salt Lake Tribune, July 14, 2014)
2120:
“The Church of Jesus Christ of Latter-day Saints, in a statement Friday, said it joined a friend-of-the-court brief asking the high court to hear Utah’s marriage case.…” (“Mormon church, other faiths urge US Supreme Court to intervene in gay marriage issue,” USA Today, September 6, 2014)
1593:
“The [SCOTUS] justices are expected Monday to turn away appeals in hundreds of cases, though, experts have said, it’s unlikely the same-sex marriage appeals will be denied.…” (Marissa Lang, “No action from Supreme Court on gay marriage – yet,” Salt Lake Tribune, October 2, 2014)
1603:
“The Supreme Court on Monday decided to let stand rulings that allow same-sex marriage in Virginia, Utah, Oklahoma, Indiana and Wisconsin, a surprising move that may clear the way for the expansion of such unions throughout the nation.
The court’s decision came without explanation…
It was a move that stunned those who closely watch the court. Even though no appeals court had ruled that state prohibitions were constitutional—and such disagreements between federal circuit courts usually are precursors to Supreme Court review—most thought the court would not let such a significant change happen without its input.…
‘There are challenges to same-sex marriage prohibitions in every state.…’” (Robert Barnes, “Supreme Court declines to review same-sex marriage cases,” Washington Post, October 6, 2014)
1601:
“In its silence on the issue of same-sex marriage, experts said Monday, the U.S. Supreme Court spoke loud and clear: Let them marry.
Gay and lesbian couples in Utah, and 10 other states, were granted the right to wed Monday after the nation’s high court declined to hear appeals from five states trying to revive their bans on same-sex unions.
The unexpected move — a denial of certiorari in seven appeals from five states — effectively legalized gay marriage in 11 new states, making same-sex unions legal in most of the country for the first time in history.…” (Marissa Lang, “Utah clerks issuing marriage licenses to same-sex couples,” Salt Lake Tribune, October 6, 2014)
1599:
“The all but universal consensus from observers of the Supreme Court had been that the stays issued by the justices indicated that the justices wanted the last word before federal courts transformed the landscape for same-sex marriage. But in recent remarks, Justice Ruth Bader Ginsberg said there was no urgency for the court to act until a split emerged in the federal appeals courts, all of whose recent decisions have been in favor of same-sex marriage.…” (Adam Liptak, “Denying Review, Justices Clear Way for Gay Marriage in 5 States,” New York Times, October 6, 2014)
1605:
“’As far as the civil law is concerned,’ The Church of Jesus Christ of Latter-day Saints announced Monday afternoon, ‘the courts have spoken.’…” (Peggy Fletcher Stack, “’Courts have spoken’ on gay marriage, says Mormon church,” Salt Lake Tribune, October 6, 2014)
1606:
“The succession of federal court decisions in recent months, culminating in today’s announcement by the Supreme Court, will have no effect on the doctrinal position or practices of The Church of Jesus Christ of Latter-day Saints, which is that only marriage between a man and a woman is acceptable to God. In prizing freedom of conscience and Constitutional guarantees of the free exercise of religion, we will continue to teach that standard and uphold it in our religious practices.
Nevertheless, respectful coexistence is possible with those with differing values. As far as the civil law is concerned, the courts have spoken. Church leaders will continue to encourage our people to be persons of good will toward all, rejecting persecution of any kind based on race, ethnicity, religious belief or non-belief, and differences in sexual orientation.” (“Church Responds to Supreme Court Announcement,” LDS Newsroom, October 6, 2014)
2403:
“On December 20, 2013, weeks before the anticipated date, [Judge Robert] Shelby ruled. He denied Utah’s motion for summary dismissal and grated the plaintiffs’ motion for summary judgment.…” (“Same-sex marriage in Utah: How we arrived here,” Q Salt Lake, October 7, 2014)
2828:
“Utah: From young judge to pioneer
U.S. District Judge Robert J. Shelby called the court to order, and Tomsic began to explain why ‘even in Utah,’ the Constitution protects the rights of gay couples to marry ‘no matter how politically unpopular or religiously unpopular that concept is.’
Tomsic talked for several minutes before Shelby, who had been on the federal bench only five months when he was assigned the case, asked his first question.
If I rule for your clients, he asked, ‘will I be the first federal court in the nation to make that finding?’
Tomsic hemmed and hawed a bit before looking at Shelby.
‘In terms of an express holding by any court in this nation, at this level, post-Windsor?’ she asked. ‘Yes, your honor, you would be the first. Congratulations.’
Two weeks later, Shelby — a registered Republican and a decorated Desert Storm veteran chosen and vetted by the state’s two conservative Republican senators, Orrin Hatch and Mike Lee, to become the youngest federal judge in Utah history — became the pioneer.
He said that Kennedy’s reasoning in Windsor, and Scalia’s as well, made clear that Utah’s ban on same-sex marriage, approved by 66 percent of the state’s voters, violated the Constitution.
Over the next few months, Shelby was followed by an avalanche of other states’ judges who decided the same thing.
But his opinion is revered by same-sex marriage advocates — not only because it came first, not only because it bucked popular sentiment in the reddest of red states and not only for the personal way Shelby wrote about each pair of plaintiffs.
What was just as important as the ruling was that he did not delay it. The state of Utah had not asked for a stay in case it lost. Marriages could begin immediately.
Tomsic said of her legal adversaries: ‘I always wondered, after the decision came out, were they so cavalier and so thought they were going to win in Utah that it never occurred to anybody they might lose and should protect themselves?’
The U.S. Court of Appeals for the 10th Circuit agreed with Shelby that a stay was not warranted, and during the 17 days before the Supreme Court stepped in and temporarily put further marriages on hold, more than 1,000 couples married.…
Wood acknowledges that it was not that way throughout the state. And the days were not pleasant for Shelby. ‘Judicial Tyranny’ read the editorial headline in the Deseret News. There were calls for his impeachment, and friends say Shelby lost weight from the stress.
But advocates far from Utah can recite a key passage in his opinion that seemed to presage what the Supreme Court would decide 18 months later, when same-sex marriage moved from nonexistent to novelty to constitutional right.
‘It is not the Constitution that has changed, but the knowledge of what it means to be gay or lesbian,’ Shelby wrote. ‘The court cannot ignore the fact that the plaintiffs are able to develop a committed, intimate relationship with a person of the same sex but not with a person of the opposite sex. The court, and the state, must adapt to this changed understanding.’”(Robert Barnes, “Decades of battles converged for momentous decision: From Hawaii to White House, gays’ right to marry seemed far from inevitable,” Washington Post, June 27, 2015)
Complaint for Declaratory and Injunctive Relief
“[p. 9] In the 2004 General Session of the Utah Legislature, the Utah Legislature passed a Joint Resolution of Marriage proposing to amend the Utah Constitution to add a provision relating to marriage (the “Resolution”). In that Resolution, two-thirds of all the members elected to each of the legislative houses voted to propose to enact an amendment to the Utah Constitution, Utah Constitution Article I, Section 29, to read: “(1) [10] Marriage consists of only 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.” In addition, the Resolution directed the Utah Lieutenant Governor to submit the prosed amendment to the voters of Utah at the next regular general election, which was on November 2, 2004, and provided that, if a majority of the voters approved the amendment, it was to take effect on January 1, 2005. Ten other states had similar constitutional amendments on their ballots for the 2004 general election.
The proposed constitutional amendment was placed on the ballot in the November 2, 2004 general election and became known as Constitutional Amendment 3 (“Amendment 3”). The Utah Voter Information Pamphlet General Election November 2, 2004 (“Pamphlet”), prepared under the direction of the Lieutenant Governor, stated that Amendment 3 would do the following:
The Amendment prohibits any other domestic union from being given the same or substantially equal legal effect as is given to a marriage between a man and a woman. Presently when a man and a woman marry, they receive certain rights, benefits, and obligations provided in the law. A married man and woman receive those rights, benefits, and obligations automatically, by operation of law and solely by virtue of being married. The Amendment prohibits a domestic union from being given those same or similar rights, benefits, and obligations.…
[11] It was subsequently reported that 65.86% of the ballots cast on November 2, 2004, voted to amend the Utah Constitution to add Amendment 3. The Amendment went into effect on January 1, 2005.…
[Kitchen v. Herbert, Complaint for Declaratory and Injunctive Relief, March 25, 2013]
Declaration of Nancy F. Cott, PhD, in Support of Plaintiffs’ Motion for Summary Judgment
“Historically, Anglo-American marriage law was based on the legal fiction that married couples were a single entity, with the husband serving as the sole legal, economic, and political representative of that unit, and the woman’s identity merging into her husband’s. This doctrine of marital unity was called coverture, and reflected society’s views of the marital couple as a unit naturally headed by the husband.
Under coverture doctrine in American law, the wife had no separate legal or economic existence. (That is why Ann Doe became Mrs. John Smith.) A married woman could not, under her own name, own or dispose of property, earn money, have a debt, sue or be sued, or enter into an enforceable agreement because her husband had to represent her in these things. Neither married partner could testify for or against the other in court – nor commit a tort against the other – because the two were considered one person. The two partners were assigned opposite economic roles understood as complementary: the husband was bound to support and protect the wife, and the wife owed her service and labor to her husband. Any property she owned before marriage became his. In community property states such as Nevada, unlike common law states, the wife retained title to her property, but coverture was reflected in the fact that the husband alone controlled management of that property and had the right to dispose of it; all community property was controlled solely by the husband until his death.
During the mid-1800s, the notion that married women could have no economic personhood apart from their husbands began to clash with the realities of a developing society. In addition to arguments for married women’s individuality from an equal rights point of view, functional economic arguments for change were persuasive to many. The static rural economy in which the coverture doctrine had arisen had begun to give way to a dynamic market economy. While coverture defined the roles of the two spouses as absolutely different, in practice the tasks of husband and wife often overlapped. Wives needed, and began to demand, rights to their own property and earnings, and legislators and husbands too could see advantages in wives being able to hold property in their own names. Judges and legislators saw the societal advantages in keeping families supported on both spouses’ assets rather than the husband’s only. If a wife had separate property, that could keep a family solvent if a husband’s creditors sought his assets. If wives could keep their earnings, then women married to profligate husbands would be able to support their children, and reduce pressure on the public purse for economic relief.
The property basis of coverture, which had been in place for hundreds of years and understood as absolutely essential to marriage, was nonetheless eliminated by all the states, over an extended period of time. Far from viewing marriage as immutable, courts and legislatures altered marriage fundamentally in order to take account of societal needs and spouses’ evolving relationships within their households and in the larger society.
In several waves of statutory reform between the 1830s and the mid-twentieth century, states replaced the common law understanding of marriage with their own detailed and evolving provisions about the economic competence of married women. The timing and content of individual state actions depended on local conditions.
The unseating of coverture was a protracted process, because it involved revising the gender asymmetry in the marital bargain. The assumption that the husband was the provider, and the wife his dependent, did not disappear as soon as the wife became legal owner of her own property and wages earned outside the home. As late as the mid-twentieth century, the hand of the past showed itself most with regard to the wife’s household labor, traditionally seen as her husband’s domestic right. A legal writer in the 1930s noted that “the courts have jealously guarded the right of the husband to the wife’s services in the household,” as part of the legal definition of marriage. Judges saw the wife’s service as a necessary corollary to the husband’s asymmetrical obligation of support; every state legally obliged the husband to his wife but not vice-versa.…
The evolution of gender neutrality in marriage beyond the ownership and control over property occurred over time through legislative developments and case holdings. During the 1970s, repeated successful challenges to sex discrimination in state laws had profound effects on domestic relations. Although the strenuous campaign to put an Equal Rights Amendment into the U.S. Constitution failed, states passed their own Equal Rights Amendments, which led toward gender neutrality in marriage and divorce reform. In divorce, for example, as in other aspects of family law today, gender neutrality in roles and decision-making is the premise. Obligations of the two spouses upon marital dissolution used to be assigned by gender, and they were asymmetrical: the husband was responsible for the economic support of any dependent children, while courts gave the mother a strong preference for custody. Under current divorce laws, in contrast, both parents of dependent children have responsibility for economic support and for childrearing; gender neutrality is the judicial starting point for post-divorce arrangements.…
A major example of state variation in marriage law is the criminalization, nullification, and voiding of marriages that crossed a “racial” or color line. This is a chequered history, not at all confined to the American South. The first such laws were passed in the Chesapeake colonies, but most slaveholding states before the Civil War relied on the regime of slavery itself, more than marriage bans, to prevent legitimate marriage between whites and blacks. Because slaves lacked basic civil rights (i.e., the right to body, liberty and property), states regarded them as also lacking the ability to consent validly to marriage. Furthermore, marriage obliged those undertaking it to fulfill certain duties defined by the state; a slave’s prior and overriding obligation of service to the master made carrying out the duties of marriage impossible.…
Many states had complicated histories on this issue, legislating repeatedly and differently over the decades. Some imposed outsize punishments: Alabama, for example, penalized marriage, adultery, or fornication between a white and “any negro, or the descendant of any negro to the third generation,” with hard labor of up to seven years. Some states (especially in the West) expanded the categories of groups whose marriage to whites was prohibited. As the historian Peggy Pascoe has shown (WHAT COMES NATURALLY, at 119): “In one state or another, all of the following groups were prohibited from marrying Whites: Negroes, Mulattoes, Quadroons, Octoroons, Blacks, Persons of African Descent, Ethiopians, Persons of Color, Indians, Mestizos, Half-Breeds, Mongolians, Chinese, Japanese, Malays, Kanakas, Coreans, Asiatic Indians, West Indians, and Hindus.”…
Alarmist critics were sure that liberalized treatment of divorce would undermine the marital compact entirely. As some states expanded their grounds for divorce in response to local circumstances, extreme differences among them arose. For example, South Carolina permitted no divorces until the late 1940s, and New York granted divorce for adultery only until the 1960s. Nevada went in the opposite direction, becoming the state most generous in granting divorce. The significant differences among states’ provisions caused great alarm about “migratory” divorce (i.e., couples traveling from their home state to a more lenient jurisdiction such as Nevada) and this possibility was attacked as a pernicious evil.…
Among the many other striking changes in American marriage laws over time, in addition to the changes discussed above, the states have removed most criminal restrictions on extramarital or nonprocreative sexual activities; the law no longer treats men who conceive children out of wedlock as non-parents; children are not formally deemed “bastards” or “illegitimates” at law if born out of wedlock; issues of custody and visitation have been separated from marital misconduct unrelated to childrearing; and the age for entry into marriage has generally risen.”
(Declaration of Nancy F. Cott, PhD, in Support of Plaintiffs’ Motion for Summary Judgment, in Sevcik v. Sandoval, Nevada; Filed September 10, 2012)
Status Conference, August 27, 2013
[Judge Robert Shelby] AS I REVIEWED THE PLAINTIFFS’ SUBMISSION IN ADVANCE OF THIS HEARING AND BEGAN TO THINK ABOUT WHAT THEY WERE ASKING — WHAT THE PLAINTIFFS WERE SEEKING BY WAY OF DISCOVERY, I BECAME MORE AND MORE CONVINCED IN ADVANCE OF OUR HEARING TODAY OF A PATH THAT I THINK MAKES SENSE AND WHAT I’LL PROPOSE, AND THEN OF COURSE WE’LL HEAR FROM ALL OF YOU.…
TO THE EXTENT THAT THERE ARE REMAINING FACTUAL QUESTIONS, AND THERE ARE A NUMBER OF ISSUES WHERE THERE ARE FACTUAL QUESTIONS, INCLUDING WHETHER MARRIAGE HAS HAD A STABLE DEFINITION ACROSS GENERATIONS, WHETHER ONLY OPPOSITE SEX MARRIAGE CAN FURTHER INTERESTS IN PROCREATION AND THE LIKE, THOSE ARE FACTS THAT ARE IN MY VIEW NOT NECESSARILY IN THE POSSESSION OF THE STATE OF UTAH OR THE DEFENDANTS. I THINK THAT IT SEEMS TO ME AT LEAST AT THE OUTSET THAT THE PLAINTIFFS ARE LIKELY TO MAKE FEW, IF ANY, OF THEIR ARGUMENTS BASED ON DEPOSITIONS OR INTERROGATORIES OR DISCOVERY RESPONSES THAT THEY WOULD RECEIVE FROM THE DEFENDANTS.
IT SEEMS FAR MORE LIKELY TO ME THAT THIS COURSE WOULD FOLLOW — THIS CASE WOULD FOLLOW THE TRAJECTORY WE’VE SEEN IN SO MANY OTHERS WHERE THE PLAINTIFFS WOULD BE CITING TO EVIDENCE PROVIDED BY SOCIOLOGISTS OR PSYCHOLOGISTS OR OTHER EXPERTS, THINGS THAT I THINK ARE EXPERTS AND SUBJECTS THAT ARE AVAILABLE TO THE PLAINTIFFS WHOLLY INDEPENDENT OF TRADITIONAL DISCOVERY IN LITIGATION. AND I DON’T — I DON’T SEE A NEED, AT LEAST AT THE OUTSET, FOR DISCOVERY FROM THE DEFENDANTS ON THOSE SUBJECTS.…
AND WHAT I’M FEARFUL OF IS SENDING THE PARTIES OUT TO SEA TO GO CONDUCT DISCOVERY AND BE COLUMBUS WHEN WE CAN DO SOMETHING FAR MORE NARROW AND SURGICAL IF NECESSARY TO ADDRESS THOSE ISSUES THAT REALLY ARE IN DISPUTE IN THIS CASE AND ONCE WE’VE DEFINED THE RULES.… (Status Conference, August 27, 2013)
Plaintiffs’ Motion for Summary Judgment
“[p. xx] Plaintiff [Kate] Call received her Bachelors of Art degree from Brigham Young University in 1974…
[xxi] Plaintiff [Laurie] Wood has a Bachelor of Arts Degree from the University of Utah, and a Masters of Arts degree from Brigham Young University, which she received in 1982.…
Plaintiff [Kody] Partridge has a Bachelor of Arts degree in Humanities and Spanish from Brigham Young University, and a Masters in English, which she received in 1994.…
(Plaintiffs’ Motion for Summary Judgment, filed October 11, 2013)
Kate Call Declaration
“I am 60 years old, was born in Wisconsin, and then moved to Mexico, where my parents were mission presidents for the LDS Church. After four years there, when I was eight years old, we moved to Utah. I grew up in Provo, where my father was a professor at BYU.…
During the first years of college, and while subsequently serving on an LDS mission in Argentina, I began to realize that I was a lesbian, and shared this information with my mission president. Without my knowledge or consent, my mission president faxed my fourteen-page ‘confession’ to the General Authorities, my home bishop, and to my parents. In that manner I was outed to my family. They seemed sad and puzzled, but ultimately said they loved me unconditionally. It really wasn’t until then that I began to self-identify as a lesbian.
Since that time, I have been stigmatized, and suffered discrimination in both the personal and private spheres.…”
(Kate Call Declaration, Filed October 10, 2013)
Memorandum Decision and Order
The Plaintiffs in this lawsuit are three gay and lesbian couples who wish to marry, but are currently unable to do so because the Utah Constitution prohibits same-sex marriage. The Plaintiffs argue that this prohibition infringes their rights to due process and equal protection under the Fourteenth Amendment of the United States Constitution. The State of Utah defends its laws and maintains that a state has the right to define marriage according to the judgment of its citizens. Both parties have submitted motions for summary judgment.
The court agrees with Utah that regulation of marriage has traditionally been the province of the states, and remains so today. But any regulation adopted by a state, whether related to marriage or any other interest, must comply with the Constitution of the United States. The issue the court must address in this case is therefore not who should define marriage, but the narrow question of whether Utah’s current definition of marriage is permissible under the Constitution.…
Applying the law as it is required to do, the court holds that Utah’s prohibition on same-sex marriage conflicts with the United States Constitution’s guarantees of equal protection and due process under the law. 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.…
In the 2004 General Session, the Utah legislature also passed a Joint Resolution on Marriage, which directed the Lieutenant Governor to submit the following proposed amendment to the Utah Constitution to the voters of Utah:
(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.
*5 Laws 2004, H.J.R. 25 § 1. The proposed amendment, which became known as Amendment 3, was placed on the ballot for the general election on November 2, 2004. Amendment 3 passed with the support of approximately 66% of the voters. The language in Amendment 3 was then amended to the Utah Constitution as Article I, § 29, which went into effect on January 1, 2005.…
I. Standard of Review
*6 The court grants summary judgment when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”…
IV. Amendment 3 Violates the Plaintiffs’ Due Process Rights
The State of Utah contends that what is at stake in this lawsuit is the State’s right to define marriage free from federal interference. The Plaintiffs counter that what is really at issue is an individual’s ability to protect his or her fundamental rights from unreasonable interference by the state government.…
As a result, the court’s role is not to define marriage, an exercise that would be improper given the states’ primary authority in this realm. Instead, the court’s analysis is restricted to a determination of what individual rights are protected by the Constitution. The court must then decide whether the State’s definition and regulation of marriage impermissibly infringes those rights.
The Constitution guarantees that all citizens have certain fundamental rights. These rights vest in every person over whom the Constitution has authority and, because they are so important, an individual’s fundamental rights “may not be submitted to vote; they depend on the outcome of no elections.” W.Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). When the Constitution was first ratified, these rights were specifically articulated in the Bill of Rights and protected an individual from certain actions of the federal government. After the nation’s wrenching experience in the Civil War, the people adopted the Fourteenth Amendment, which holds: “No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”…
“Marriage is mentioned nowhere in the Bill of Rights and interracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia.” Casey, 505 U.S. at 847–48, 112 S.Ct. 2791…
The State presents no argument or evidence to suggest that the Plaintiffs could change their identity if they desired to do so. Given these undisputed facts, it is clear that if the Plaintiffs are not allowed to marry a partner of the same sex, the Plaintiffs will be forced to remain unmarried. The effect of Amendment 3 is therefore that it denies gay and lesbian citizens of Utah the ability to exercise one of their constitutionally protected rights. The State’s prohibition of the Plaintiffs’ right to choose a same-sex marriage partner renders their fundamental right to marry as meaningless as if the State recognized the Plaintiffs’ right to bear arms but not their right to buy bullets.
While admitting that its prohibition of same-sex marriage harms the Plaintiffs, the State argues that the court’s characterization of Amendment 3 is incorrect for three reasons: (1) the Plaintiffs are not qualified to enter into a marriage relationship; (2) the Plaintiffs are seeking a new right, not access to an existing right; and (3) history and tradition have not recognized a right to marry a person of the same sex.…
The court does not find the State’s argument compelling because, however persuasive the ability to procreate might be in the context of a particular religious perspective, it is not a defining characteristic of conjugal relationships from a legal and constitutional point of view. The State’s position demeans the dignity not just of same-sex couples, but of the many opposite-sex couples who are unable to reproduce or who choose not to have children. Under the State’s reasoning, a post-menopausal woman or infertile man does not have a fundamental right to marry because she or he does not have the capacity to procreate. This proposition is irreconcilable with the right to liberty that the Constitution guarantees to all citizens.…
The State’s second argument is that the Plaintiffs are really seeking a new right, not access to an existing right.… Similarly, the Plaintiffs here do not seek a new right to same-sex marriage, but instead ask the court to hold that the State cannot prohibit them from exercising their existing right to marry on account of the sex of their chosen partner.
The alleged right to same-sex marriage that the State claims the Plaintiffs are seeking is simply the same right that is currently enjoyed by heterosexual individuals: the right to make a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond.…
The State argues that preserving the traditional definition of marriage is itself a legitimate state interest. But tradition alone cannot form a rational basis for a law.…
Although the State did not directly present an argument based on religious freedom, the court notes that its decision does not mandate any change for religious institutions, which may continue to express their own moral viewpoints and define their own traditions about marriage. If anything, the recognition of same-sex marriage expands religious freedom because some churches that have congregations in Utah desire to perform same-sex wedding ceremonies but are currently unable to do so. By recognizing the right to marry a partner of the same sex, the State allows these groups the freedom to practice their religious beliefs without mandating that other groups must adopt similar practices.…
CONCLUSION
In 1966, attorneys for the State of Virginia made the following arguments to the Supreme Court in support of Virginia’s law prohibiting interracial marriage: (1) “The Virginia statutes here under attack reflects [sic] a policy which has obtained in this Commonwealth for over two centuries and which still obtains in seventeen states”; (2) “Inasmuch as we have already noted the higher rate of divorce among the intermarried, is it not proper to ask, ‘Shall we then add to the number of children who become the victims of their intermarried parents?’ ”; (3) “[I]ntermarriage constitutes a threat to society”; and (4) “[U]nder the Constitution the regulation and control of marital and family relationships are reserved to the States.” Brief for Respondents at 47–52, Loving v. Virginia, 388 U.S. 1 (1967), 1967 WL 113931. These contentions are almost identical to the assertions made by the State of Utah in support of Utah’s laws prohibiting same-sex marriage. For the reasons discussed above, the court finds these arguments as unpersuasive as the Supreme Court found them fifty years ago. Anti-miscegenation laws in Virginia and elsewhere were designed to, and did, deprive a targeted minority of the full measure of human dignity and liberty by denying them the freedom to marry the partner of their choice. Utah’s Amendment 3 achieves the same result.
Rather than protecting or supporting the families of opposite-sex couples, Amendment 3 perpetuates inequality by holding that the families and relationships of same-sex couples are not now, nor ever will be, worthy of recognition. Amendment 3 does not thereby elevate the status of opposite-sex marriage; it merely demeans the dignity of same-sex couples. And while the State cites an interest in protecting traditional marriage, it protects that interest by denying one of the most traditional aspects of marriage to thousands of its citizens: the right to form a family that is strengthened by a partnership based on love, intimacy, and shared responsibilities. The Plaintiffs’ desire to publicly declare their vows of commitment and support to each other is a testament to the strength of marriage in society, not a sign that, by opening its doors to all individuals, it is in danger of collapse.
The State of Utah has provided no evidence that opposite-sex marriage will be affected in any way by same-sex marriage. 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. Moreover, the Constitution protects the Plaintiffs’ fundamental rights, which include the right to marry and the right to have that marriage recognized by their government. These rights would be meaningless if the Constitution did not also prevent the government from interfering with the intensely personal choices an individual makes when that person decides to make a solemn commitment to another human being. The Constitution therefore protects the choice of one’s partner for all citizens, regardless of their sexual identity.
ORDER
The court GRANTS the Plaintiffs’ Motion for Summary Judgment (Dkt. 32) and DENIES the Defendants’ Motion for Summary Judgment (Dkt. 33). The court hereby declares that Amendment 3 is unconstitutional because it denies the Plaintiffs their rights to due process and equal protection under the Fourteenth Amendment of the United States Constitution. The court hereby enjoins 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. (Memorandum Decision and Order, December 20, 2013)
INTERVIEWS
Evans: The State Attorney General’s Office, which is in a huge turmoil right now because of John Swallow, was absolutely, embarrassingly asleep at the switch. They could have had their motions for a stay filed in advance, ready to go, pull the trigger whenever this judge ruled. Instead, they were caught flat-footed, they ended up filing with the 10th Circuit in a manner that was procedurally wrong, and the 10th Circuit rejected it. It’s just embarrassing.
(William Evans, December 23, 2013)
Kendell: Oh, my God, there is no way you could have anticipated, six years ago—on the night that Prop 8 passed, if someone would have said to me, “I know it’s bad right now and I know you feel terrible. But let me just tell you that in 2014, same-sex couples will be marrying in Utah.” I would have said, “There is no way that is going down!”
Prince: “What have you been smoking?”
Kendell: Exactly! “I want some of what you’ve got.” In some ways, this is the miracle of grace.
Prince: And it is what is driving me on this project. There is inescapable irony.
Kendell: Yes. And in a way, it’s kind of a miracle. It’s the whole “God works in mysterious ways” kind of thing.
(Kate Kendell, December 3, 2014)
Williams: Moving along in the last few years, we get to December 20th, 2013, with Judge Shelby’s decision. It just rocked the universe here. Going to the courthouse—my boyfriend and I went to the courthouse. We weren’t getting married, but we just wanted to be there for our friends. It was one of the most powerful, beautiful experiences ever. There was so much love and joy just pouring out. Each time a couple got their marriage license, there were cheers as they came through. We thought there was going to be a stay any second.
You also have to give credit to Mark Lawrence. He is the upstart who came along and filed the lawsuit. He is cranky, not a polished gay who is safe. He is the upstart, more of the Queer Nation type.
Prince: Was he a plaintiff or an attorney?
Williams: He was the guy who pulled it all together. He pulled the plaintiffs and the attorneys together. He’s kind of a great character, although he is kind of tragic in the sense that he can’t get along with people, and so he was falling out with the plaintiffs and falling out with the attorneys, and wasn’t able to fully enjoy it. He sabotaged himself as he moved through it, but he was great because he didn’t know that what he set out to do was impossible, and so he did it. All the best thinkers were saying, “Don’t do it.”
Prince: That was the same thing they said about California.
Williams: Yes.
Prince: Rick Jacobs said, “We didn’t want this to happen. It was too soon.”
Williams: Exactly. But it was the right moment, and Mark will always go down in history for seeing what the rest of us could not see.
(Troy Williams, March 30, 2015)
Laurie: I was born and raised in the church. I grew up in Utah, in a very small town where everyone was LDS. My parents weren’t terribly active, but everybody at school was LDS. I went to the University of Utah and graduated, not knowing where or what I wanted to do. I did serve an LDS mission, and I went to Los Angeles on my mission in the late 70s. I spent most of my time in the San Fernando Valley. I came home and went to BYU and got a master’s degree, and then began my teaching career.
I was losing my faith quickly. When I met a woman and fell in love, because we were both at BYU we tried very hard to maintain our membership. But it just didn’t work. Basically, we left the church and sort of went underground. We lived very closeted lives because both of us taught in Utah County.
Prince: Was that why you were losing your faith, or were there other issues?
Laurie: There were other issues. I just didn’t find any spiritual happiness in the LDS Church. If I wanted to have any kind of spiritual growth, I wasn’t finding it there because all of the other stuff just got too much in the way.
So we lived a closeted life for twenty years. I really didn’t come out in my workplace until I was in my 40s. By then, I was at Utah Valley University. It must have been in the late 90s or the early 2000s that I asked for my name to be removed from the LDS Church records.
Then I moved to Salt Lake, and the further I got away from Utah County—I got active in the ACLU, got active a little bit in the gay community—I just felt that these were my people. I had found my tribe, and I felt much more at home than I ever had.
Prince: Were you still working at UVU?
Laurie: Yes. I just retired this last fall. I taught English there for twenty years.
Other than interfering in Utah politics, the church really didn’t affect my life. I didn’t have a crisis of faith; it was sort of a whimper rather than a bang. I probably wouldn’t ever talk about the LDS Church except that they keep messing in the politics of my life. People can believe whatever they want. People can practice their faith however they want. Individually, Mormons are terrific. But its involvement in politics in Utah just drives me crazy.…
Laurie: During the case, Kody and I, and Derek and Moudi, were very careful. Our fight was with a law. Our fight was not with the LDS Church. We were very clear. We had, here in Utah, a great experience. We met so many kind, wonderful people. We never had any kind of threats or anger, even any kind of nastiness. We kept saying, “We love Utah.”
Kody: And we do.
Laurie: We didn’t get married somewhere else, because it didn’t matter unless we could get married where we lived. We love living in Utah. It’s a great place to live, and it’s my home. Kody has now lived here longer than she lived anywhere else.
So the people were terrific to us, and we made it very, very clear to reporters from all over the world that we were not ever going to comment on the LDS Church and its role in any of this. Our fight was with the attorney general and the governor. This is way more than we ever said in the whole two years that we were involved in the case.
Prince: Kody, Laurie told me her story while you were getting water. It’s your turn.
Kody: I tell my students, and I will tell you, that I grew up in this really amazing family. Laurie thinks that because I am the youngest of five that my feet never touched the ground because my parents and my older siblings just loved me. I think there is a lot of truth to that.
But I also grew up in what I would call a quirky Mormon family in Montana. My parents weren’t married in the temple until I was twelve or thirteen. My father wasn’t baptized until I was born. So I grew up in a really interesting family, but it was a loving family. That’s what the Mormon Church talks about, the importance of family. All sorts of issues impacted the tension within the family, and not just because of me.
At some point I really felt that I would end up spending my life with a woman, and it would be a woman I met and loved and wanted to commit to; and that created some tension. But in many ways we had this really strong connection with the family, and sometimes the church’s policy created its own tension.
Neither of my parents has a college degree. I was only the second in my family to get a college degree. My experience at BYU was really amazing in so many ways. I went on a mission, and I realized that I might be attracted to a woman. I was attracted to a woman, and I realized that I might end up spending my life with a woman. I came back to BYU aware of that, and I was grappling with that. I talked to my parents about that.
I graduated in 1994, and it wasn’t until after I had graduated from BYU—and I had been surrounded by a lot of really great friends, faculty, colleagues, who know that I had these questions and had already questioned my faith, and were supportive. It wasn’t until Amendment 3 in Utah and Prop 8 that I saw the church’s political machine kick into action. And that was troubling.
Prince: Did you see it in action with Amendment 3, or more with Prop 8?
Laurie: We were both active and worked and canvassed and handed out things for Amendment 3. Mostly I remember us focusing on, “It goes too far.” It was the second part. We sort of knew the first part was going to pass. But I think it was the publicity and the openness of the church in Prop 8, and that was so nasty.
Prince: With Amendment 3 they stayed behind the scenes.
Laurie: Exactly.
Kody: And in Utah they don’t have to.
Laurie: Everyone else is a spokesman for it.
Kody: The church talks about prophetic revelation, and we have revelation about how the trajectory of history changes. I quoted it all during our case, but I really do think that the moral arc of history moves toward equality and toward justice. I think that is in complete contrast to what the church calls prophetic revelation. I don’t know how they deal with that long-term, because I think it’s going to be working against history.
Prince: And we haven’t seen the end of this one. It took a long time to see the end of the ban on priesthood for blacks, but we finally got there. With this one, I think it’s a corrosive effective on the institutional church, and it’s a question of how deeply corroded it will become before somebody finally decides, “We have to reverse field on this.”
Kody: What would that do to prophetic revelation?
Prince: Sometimes revelation is a response to necessity. I think that an underlying problem that they have is that right now they have an afterlife theology that cannot accommodate gay. They are either unwilling or unable to figure out how to fix that. I see that they take their afterlife theology as their endpoint, and then they reverse-engineer that to the present and build their current policy on that basis.
Laurie: I think that’s true.
Prince: I talked to some of the Brethren years ago and said, “Biology will inform this issue, and it will inform it strongly. Don’t get on the wrong side of biology.” But they have. You follow it enough to realize that it isn’t a choice—and you have your own experience to back that up. This is the way that you are imprinted. It’s the way you are wired. It’s biology. But we still have some of the men who sit in the Red Chairs who, even though they will concede, in a weak moment, that it’s not a choice, they don’t really believe that it’s not a choice. It’s the equivalent of saying to a black person, “All right, we’ll concede that you didn’t choose to be black; but if you act black, we are going to slam you.”
Laurie: Right. “We really know you want to be white—and you really know that you want to be straight.”
Kody: The problem is that it creates this simplistic analogy. We hear people say, “OK, someone is fluent in this language, but I think they can learn to be fluent in another.” We can put it in terms of sexuality. “So-and-so is really fluent in the language of homosexuality. They feel like they are attracted to the same sex, but we’ll teach them the language of heterosexuality.” I’ve heard that analogy made.
Laurie and I may not have done this interview until the church’s announcement. Thanksgiving was a very sobering experience at my family’s house. It was a really tough moment. I think there were a lot of hard discussions that holiday because of the church’s decision.
Prince: Let’s move into the lawsuit now. Tell me how you got involved in it.
Laurie: We were asked by a friend who was already married, and so couldn’t participate, if we were interested in it. They asked us on a Friday, and we had to decide by Sunday night. We had some pretty intense conversation over that weekend, and decided that because of the situation—I was at UVU and knew I was close to retirement, and if they wanted to fire me I didn’t care, and Kody doesn’t work in a public school. She works in a private school that is very supportive—so because we could, we knew we had to. So we got with Peggy Tomsic and Jim Magleby, and we met the other plaintiffs. We really didn’t know what we were in for; we just knew that it was something that we definitely wanted in our state, and we wanted it for us.
Kody: On Saturday night we had dinner with another lesbian couple. We were married on the 20th, and they were married that weekend or that Monday after, when Judge Shelby made his historic decision. We were talking about the fact that to exchange those vows really was a defining moment. To recognize what that meant was more than a legal commitment. It was a rite of passage, and we felt like it mattered to our families, to our community and to our friends.
I teach at this amazing school. When I told the headmaster of the school that we had been asked to consider entering the lawsuit, she said, “You have to do it!” When I told the principal, his response was really quick: “Yes, of course, this is your decision.” I said, “Maybe you should ask our headmaster.” Within an hour or two, I had an email that said, “This is your decision. If this is what you and Laurie want to do, we support you.” It was an amazing experience. We had parents, we had students from the very first, who immediately started emailing or sending us notes: “Thank you! We are proud of you!”
After we had gone to trial and before Judge Shelby’s ruling, they held a morning meeting and said, “Kody and her wife decided they are going to stand up and say, ‘This law is not just. It is not equal.’” The entire faculty and the student body from the upper school stood up and applauded. It wasn’t about their religious beliefs or even their identification with a political party. What they believed they were saluting was, “In this country, if you think a law is unjust, you stand up to it.” We were accidental activists, but we did that. It’s amazing the support we got.
Prince: Did you have any contact with the plaintiffs in Perry v. Hollingsworth?
Laurie: We only met them once, at a screening of “8: The Mormon Proposition.” I’m glad I didn’t see that documentary before I signed on, because they had a much tougher time. They had hate calls and that sort of thing, and we didn’t have any of that. If I had seen that that was a possibility for us, I probably wouldn’t have been nearly as brave.
Prince: How much courtroom time did you have? It wasn’t an open trial.
Laurie: No, it was a summary judgment hearing before Judge Shelby. They thought it would be an hour, and it ended up being three hours long. He said he would rule sometime after the first of the year, but he came back in seventeen days and caught the world off-guard on a Friday afternoon before Christmas. We had seventeen days before they stayed the judgment, because the state hadn’t asked for a stay.
Prince: I don’t think it dawned on any of them that Shelby would rule against them.
Laurie: I don’t think it did.
Kody: We said to people, “If you had been in that room, I didn’t think the people who were arguing on behalf of the state had their heart in it. I didn’t think they thought the legal arguments or the principles of democracy were on their side.” It was really lackluster.
We had dinner with close friends who were in that room, including Laurie’s brother and sister-in-law. They didn’t see how Judge Shelby would be able to support the state’s case, and he didn’t.
Laurie: His ruling was the only ruling that was cited in the final Supreme Court case, Obergefell v. Hodges.
Prince: He was leaning heavily on Vaughn Walker’s decision in California. It’s a sad commentary on the defense that they could not mount a credible defense.
Laurie: In the Utah case, the attorneys that argued the first time, and then when Gene Schaerr came in, they couldn’t settle on what their argument was, because they were taking an indefensible stand. It showed in all the transcripts. We listened to Oklahoma, we listened to Ohio—all those other cases it was the same thing. They’d bring out these very, very tired arguments. “What about the children?” “Let’s have gender roles.” Just stuff that you wouldn’t believe would make it that far in a lawsuit.…
Kody: We were hopeful we wouldn’t see some terrible backlash. We decided to join this case because we felt that we could, and there were others who had much more at stake, where a loved one had been diagnosed with a terminal illness. That will, that insurance mattered. We knew families with kids who wanted to be able to adopt and provide that security.
Laurie: Or people who wanted to take job offers but couldn’t move from the state where they might have marriage to one where they might not.
Kody: Although the church focuses on the family, they are doing such harm to families.
(Kody Partridge and Laurie Wood, May 16, 2016)