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On Utah's side: A digest version of amicus briefs filed in same-sex marriage case

Published February 11, 2014 6:42 am

This is an archived article that was published on sltrib.com in 2014, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Here are the briefs, in a nutshell, filed to support Utah's defense of Amendment 3. I will be updating these as I read through the remaining briefs. Check the top of the file for the newest filings.

• Eagle Forum Education and Legal Defense Fund: "Amicus Eagle Forum respectfully submits that the people's rejection of the [Equal Rights Amendment] — the only constitutional text that arguably might have supported plaintiffs' claims — compels this court to reject plaintiffs' claims. ... Having failed with the ERA, the canards have returned to try to roost in the Fourteenth Amendment. However they might have fared under the ERA, they cannot survive without it."

• D'arcy Winston Straub of Littleton, Colo., potential congressional candidate: Straub said that if elected she plans to sponsor legislation that would prohibit state and federal governments from using the term "marriage" and its "derivative forms" and replace with "civil union" and "united." "The source of the deep divisiveness associated with the issue of same-sex marriage is the government entangling itself with a biblical term that implicates people's religious beliefs.

• The Beckett Fund for Religious Liberty: "The lower courts' decision to impose same-sex marriage by judicial degree will automatically trigger civil liability for religious people and institutions, and will expose them to significant government penalties." The court also should "recognize that federal judicial intervention will cut off the democratic process of debate regarding religious liberty protections and same-sex marriage. ... The federal courts can avoid treading on the prerogatives of state sovereigns and the democratic process by allowing the debate time to work its way through American society."

• Jason S. Carroll and Alan J. Hawkins, Brigham Young University: As with the advent of no-fault divorce, changing the "basic definition and social understanding of marriage ... will change the behavior of men and women in marriage and even affect whether they enter marriage in the first place. ... While affording adults greater autonomy and facilitating an easier end to dangerous or unhealthy relationships, [no-fault divorce] also resulted in increased numbers of divorces from low-conflict marriages, created a tangible sense of fragility for all marriages, and left more children to be raised without one of their parents, typically the father, with attendant adverse consequences."

• Liberty Counsel: "At issue in this case is whether the nation is going to continue to honor and respect the transcendent nature of marriage, which John Locke described as 'the First Society.' ... The Supreme Court has removed legislative and judicial barriers placed upon the union of one man and one woman, but has not, because it cannot, change the nature of the union. ... It is because of this natural aspect of a female-male union that, historically, consummation of marriage required sexual intercourse, and not simply any sexual act between the couple — the idea was to join the parts that, together, have the potential to embody a whole."

• Family Research Council: "In FRC's judgment, recognition of same-sex marriages — either by state legislators or by the courts — would be detrimental to the institution of marriage, children and society as a whole."

• David R. Upham, University of Dallas: "Our Constitution, read in light of history, tradition, and well-established precedent, not only permits the states to retain the traditional definition of marriage, but forbids the states to adopt the new definition set forth by the District Court."

• Helen M. Alvare, George Mason University: "The new understanding of marriage advocated by plaintiffs is dangerous, particularly for under-privileged Americans, because it is closely associated in a substantial body of literature with the retreat from marriage among the poor, the less-educated, and minority groups."

• Juab, Beaver, Box Elder, Cache, Emery, Garfield, Iron, Kane, Millard, Morgan, Sanpete, Sevier, Uintah, Utah, Wasatch and Washington counties: "The interest in this case of these amici counties is to voice the view of their counties that protection of marriage as the union of a man and a woman is important, and that the laws of the state of Utah so defining marriage are basic civil rights laws protecting the core social institution of society and the values upon which our constitutional government and liberties rest."

• Douglas Wortham and Nicholas Nero; Lynn Beltran and Claudia O'Grady; Stanford Rovig and Charles Fluke (three same-sex couples in Utah)

• Concerned Women of America: Courts should not provided a higher level of scrutiny in the case because "homosexuals and lesbians have achieved direct political power; they have acquired important political allies; they can raise significant funds from their own community, from labor unions and from corporate Americas; they have support from various religious communities; and public opinion is moving in their favor."

• Sherif Girgis, Robert P. George and Ryan Anderson, authors of "What is Marriage? Man and Woman: A Defense:" "This court's task is not to judge the desirability of the state of Utah's definition, but only to decide whether citizens and legislators may embody in law the belief in marriage as a conjugal union, as they have historically done."

• States of Indiana, Alabama, Alaska, Arizona, Colorado, Idaho, Indiana, Montana, Nebraska, Oklahoma and South Carolina: "In view of traditional, exclusive state prerogatives over marriage, the amici states have an interest in protecting state power to adhere to the traditional definition of marriage."

• State of Michigan: "The people of the states, not federal courts, should decide the definition of marriage; marriage encourages the commonsense point that it benefits a child to have a mom and a dad; and this time-honored definition does not disparage anyone but is based on a conclusion about raising children."

• The Sutherland Institute: "Given that marriage and family are pre-political and not mere instruments of state policy, they are fundamental to a system of ordered liberty."

• American Leadership Fund and 19 history and social science professors: "In light of [the] historical record, retaining the age-old definition of marriage cannot be deemed unreasonable or arbitrary under the Fourteenth Amendment."

• The Center for Urban Renewal and Education; The Coalition of African-American Pastors USA and The Frederick Douglass Foundation: "To 'expand' marriage by making it 'genderless' would diminish both the social benefits it provides and the contributions the Supreme Court of the United States celebrated when it invalidated Virginia's antimiscegenation law."

• Paul McHugh, psychiatrist at Johns Hopkins University: "Unlike the traits of race and sex, and again despite popular beliefs to the contrary, no replicated scientific study supports the view taht sexual orientation is determined at birth."

• The Church of Jesus Christ of Latter-day Saints; National Association of Evangelicals; U.S. Conference of Catholic Bishops; Ethics and Liberty Commission of the Southern Baptist Convention; Lutheran Church-Missouri Synod (see story online)

• Doug Mainwaring, who self-identifies as gay but is in a heterosexual marriage; Alana Newman, conceived via sperm donation; and Robert Oscar Lopez, who self-identifies as bisexual and was raised by two lesbians: "Redefining marriage in Utah would deprive many children — specifically those obtained by same-gender couples from either a mother or a father and would not be in their best interest, but would be to their detriment. Amici have also shown that it is rewarding for those with same-gender attraction who want to parent children to choose traditional marriages in behalf of providing a mother and a father to their children, per their children's best interests, and live happy, fulfilling, satisfying lives."

• Social science professors Douglas W. Allen, Simon Fraser University; David Eggebeen, Pennsylvania State University; Alan J. Hawkins, Brigham Young University; Bryon R. Johnson, Baylor University; Catherine R. Pakaluh, Ave Maria University; Joseph Price, Brigham Young University; Mark D. Regnerus, University of Texas, Austin: "There is no dispute that a biological mother and father provide, on average, an effective and proven environment for raising children."

• Institute for Marriage and Public Policy: "Construing the federal Constitution in a manner that requires states to redefine marriage would trample ... traditional state power and contravene compelling interests in federalism, state self-determination, and pluralism."

• Parents and Friends of Ex-Gays and Gays: Presents four personal stories that show "sexual orientation is a transient, personal characteristic, and that individuals can and do change their sexual orientation" and should not be treated as an immutable characteristic, like race or gender, that is deserving of being declared a "suspect class."

• Daniel O, Conkle, Indiana University Maurer School of Law; Michael Perry, Emory University School of Law; Brett G. Scharffs, J. Reuben Clark Law School at Brigham Young University: "Whatever the constitutional merits of Utah's marriage laws, it is completely inaccurate to charge the voters who approved it with having the sole purpose of expressing moral disapproval of same-sex couples, of acting out of 'animus' which can only be understood to describe the demeaning view that gays and lesbians are less worthy human beings than those who are not gay or lesbians."

• National Association for Research and Therapy of Homosexuality: "Contrary to the district court's notion that there is no longer any dispute concerning the ability of a person to change their unwanted same-sex attractions ... the science simply does not support that notion. Indeed, the science currently shows that homosexuality is not an immutable characteristic."

• Center for Constitutional Jurisprudence and 27 scholars of federalism and judicial restraint: "Principals of federalism and judical restraint urge this court to exercise caution when considering the expansion of constitutional rights in areas of contentious social dispute."

• Utah Reps. Lowry Snow, R-St. George; LaVar Christensen, R-Draper; Kay McIff, R-Richfield; Merrill Nelson, R-Grantsville

— Brooke Adams