Feb. 5 (Bloomberg) -- Utah, fighting to preserve its law prohibiting same-sex marriage, argued it’s obligated to defend future generations of children whose well-being is threatened by redefining marriage from the traditional heterosexual model.
Utah has a duty to defend “all of Utah’s children -- both now and in future generations,” Utah Governor Gary Herbert and Attorney General Sean D. Reyes said in a filing with the U.S. Court of Appeals in Denver seeking to throw out a ruling in December that struck down the state’s voter-approved ban.
In approving a constitutional amendment barring gay marriage, Utah voters “reaffirmed among other things their firm belief -- also supported by sound social science -- that moms and dads are different, not interchangeable, and that the diversity of having both a mom and a dad is the ideal parenting environment,” the state officials said in yesterday’s filing.
Gay marriage is legal in 17 U.S. states and the District of Columbia. The U.S. Supreme Court decided in June to overturn part of the federal Defense of Marriage Act and leave standing an order ending California’s ban on same-sex marriage. The court didn’t say whether similar state laws should also be struck down, leaving lower courts to grapple with that issue.
States now face a wave of lawsuits in which advocates seek to expand recognition of marriage rights for gay couples, possibly setting up another Supreme Court review.
In Virginia, where a federal judge in Norfolk yesterday heard arguments on a challenge to the state’s 2006 constitutional amendment barring same-sex marriage, lawyers defending the law made an argument similar to Utah’s.
Attorneys for two county court clerks and the state’s registrar of vital statistics said traditional marriage is an “ancient institution” whose intent is to serve a range of legitimate state interests including having most children raised by their biological parents.
Austin Nimock, a lawyer for the defense who’s part of the conservative advocacy group Alliance Defending Freedom, said a ruling against the ban would “change the basic concept of marriage in Virginia.”
Virginia Attorney General Mark Herring, a Democrat who took office on Jan. 11, refused to defend the state’s voter-approved measure, making him the fourth state attorney general to decline to argue for gay-marriage bans.
A lawyer representing two Virginia couples who are seeking to void the state ban argued at yesterday’s hearing that the the majority doesn’t get to determine basic rights for the minority.
Ted Olson, a former solicitor general for President George W. Bush who worked on a successful challenge to a same-sex marriage ban in California, cited cases where Virginia stood against minority rights including desegregation, interracial marriage, and allowing women to attend the Virginia Military Institute, a state school.
“Marriage is not all about children,” Olson said, pointing out that some couples marry too late to have children and others choose to remain childless. “It’s about freedom.”
U.S. District Judge Arenda L. Wright Allen, who was asked by the suing couples to rule without a trial that the Virginia ban is unconstitutional, concluded the hearing saying, “You’ll hear from me very soon.”
In California, proponents of a 2008 ballot initiative that barred same-sex marriage contended the desire of gays and lesbians to marry is outweighed by the state’s interest in promoting child rearing in traditional marriages of a man and a woman. Both the federal judge in San San Francisco who reviewed the law and an appeals court panel concluded the measure was unconstitutional.
The American Academy of Pediatrics, citing a 2013 report, said it supports civil marriage for same-gender couples as the “best way to guarantee benefits and security for their children.”
“A great deal of scientific research documents there is no cause-and-effect relationship between parents’ sexual orientation and children’s well-being,” the academy said in a March statement. Many studies “attest to the normal development of children of same-gender couples when the child is wanted, the parents have a commitment to shared parenting, and the parents have strong social and economic support.”
In Utah’s case, Reyes said the constitutional question is whether it’s reasonable for the state’s citizens to believe the traditional definition of marriage should be encouraged because a child benefits most from being raised by his or her biological mother and father in a permanent relationship, according to a statement he issued yesterday.
“The state of Utah firmly believes the definition of marriage adopted by 66 percent of Utah citizens through popular vote is legal not only under the Utah Constitution, but also the United States Constitution,” Reyes said.
Reyes, a Republican, said last month that marital benefits won’t be granted to same-sex couples married after the state’s ban was struck down on Dec. 20 by U.S. District Judge Robert Shelby in Salt Lake City if they didn’t seek them in the 2 1/2 weeks before the U.S. Supreme Court put that order on hold. The Supreme Court halted gay weddings in Utah on Jan. 6 after more than 1,000 marriages had been conducted. The policy doesn’t affect benefits obtained before the high court ruled.
Utah sought Supreme Court intervention after Shelby, an appointee of Democratic President Barack Obama, and the Denver-based appeals court let the marriages go forward. The Supreme Court didn’t rule on the merits of the case.
John Mejia, legal director for the American Civil Liberties Union in Utah, declined to comment on Utah’s filing.
The appeals court directed opponents of Utah’s ban to file written arguments by Feb. 25 and scheduled oral arguments for April 10.
The appeals case is Kitchen v. Herbert, 13-4178, U.S. Court of Appeals for the Tenth Circuit (Denver). The lower-court case is Kitchen v. Herbert, 13-cv-00217, U.S. District Court, District of Utah (Salt Lake City).
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