By Myrna Trauntvein
Times-News Correspondent
Juab County has taken the lead in organizing 21 additional counties and coordinating with Professor Lynn D. Wardle, BYU Law School, on drafting the Amicus Curiae Brief petitioning the Supreme Court of the United States to consider the same sex marriage case.
"We filed in the Supreme Court last week encouraging them to accept the Utah case," said Jared Eldridge, Juab County Attorney. "This particular brief is not intended to argue all of the legal points but rather to try and point out to the Supreme Court why they should accept the Utah case for consideration during the Supreme Court's fall session."
Listed on the petition are Gary R. Herbert, in his official capacity as governor of Utah, Et Al, as petitioner, v. Derek Kitchen, Et Al, as respondents.
On Petition for a Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit, the Amicus Curiae Brief for 21 counties--Juab, Beaver, Box Elder, Cache, Carbon, Daggett, Duchesne, Emery, Garfield, Iron, Kane, Wastach, and Washington, in support of the petitioner, submitted under the name of Wardle as Counsel of Record for Amici 21 Counties.
Amicus Curiae is Latin for "friend of the court," a party or an organization interested in an issue which files a brief or participates in the argument in a case in which that party or organization is not one of the litigants.
One question presented in the brief was: "Did the lower courts prejudicially err by improperly invalidating Utah's marriage laws and constitutional provision which define marriage as the union of a man and a woman, thus prohibiting and refusing recognition to same-sex marriages, because those courts mistakenly held that such laws and provisions violate the Constitution of the United States?"
Many cases and authorities were cited as having bearing on the case and which the Supreme Court should consult in making a decision.
"The amici are 21 (of the 29) counties in the State of Utah (nearly three-fourths of the counties in the State)," said Eldridge.
As County governmental entities, the amici counties carry out various duties delegated by the State relating to marriage including the issuance and processing of marriage licenses to eligible applicants and administration of other programs relating to marriage and for married families. The Utah citizens residing in the amici counties strongly support protecting marriage as the union of a man and a woman.
In the summary of the argument in the brief, it is stated that: "There are many powerful and profound reasons why Utah, like most States and nation today, define (and historically have defined) marriage to be the union of a man and a woman--only--and why they have declined to recognize the union of two men or two women as a valid marriage."
"Among the reasons why Utah rejects same-sex marriage is concern about the direct and collateral social consequences of redefining that core social institution. Among those disturbing social consequences is the phenomenon of increased rates of abortion and diminished, diluted social shared understanding of marriage and marital responsibilities," reads the brief.
The rulings by the courts invalidating Amendment 3 violated the core constitutional principle of federalism. Federalism in family law reserves to the states the decision whether or not to allow or recognize same-sex marriage.
In 2004, in response to growing political pressures and various developments to legalize same-sex marriage, voters in Utah voted overwhelmingly for proposed Amendment 3 to amend the Constitution of Utah to define marriage specifically to consist "only of the legal union between a man and a woman," and to prohibit the state from recognizing any other "domestic union, however denominated" from being "recognized as a marriage or given the same or substantially equivalent legal effect."
In November 2004, two-thirds (65.86 percent) of all Utah voters cast ballots in favor of adopting Amendment 3's gender-integrating definition of marriage into the Utah Constitution.
Amendment 3 of 2004 added Article 1, Section 29 to the Utah Constitution.
In many Utah counties (including over one-third of the amici counties), more than 75 percent of the voters who voted in 2004 cast their votes in support of constitutionalizing the explicitly gender-integrating definition of marriage proposed in Amendment 3. Thus, Utah's constitutional definition of marriage as the union only of a man and a woman, since January 2005 manifests a very strong, widely-supported public policy and reflects deeply-cherished values of the people of Utah, including those who live in the 21 amicus counties.
In December 2013, a U.S. District Court in Utah ruled that these laws and provisions prohibiting same-sex marriage irrationally and unconstitutionally infringed the plaintiffs' constitutional right to marry, discriminated on the basis of sex, and violated equal protection of the laws, and enjoined enforcement of Amendment 3 and related Utah marriage laws. Kitchen v. Herbert.
After the lower federal courts refused to do so, the Supreme Court of the United States granted a stay pending appeal. On appeal, the Tenth Circuit panel affirmed the district court judgment on essentially the same grounds.
"There are powerful reasons why the people of Utah wisely and responsibly may choose to continue to allow only male-female marriage. That is the universal historic and overwhelming global norm," according to the brief.
Until thirteen years ago, no nation in the world, in any period of world history, had ever allowed same-sex marriage. Currently, same-sex marriage is permitted in only sixteen of the 193 sovereign nations on earth. One additional nation is expected to begin allowing same-sex marriages this Fall 2014, and another is expected to begin permitting same-sex marriage next year in 2015.
That total represents less than ten percent of all the (193) sovereign nations in the world.
The Netherlands (2001), Belgium (2003), Canada (2005), Spain (2005), South Africa (2006), Norway (2009), Sweden (2009), Portugal (2010), Iceland (2010), Argentina (2010), Denmark (2012), Uruguay (2013), New Zealand (2013), France (2013), Brazil (2013), UK (England/Wales) (effective summer 2014); Scotland (effective c. late 2014); Luxembourg (effective January 2015).
Same-sex marriage is allowed in some non-national sub-jurisdictions, municipalities, or states, e.g., in Mexico and the USA.
The strong global consensus about the meaning of marriage as a gender-integrating institution provides a powerful reason for states like Utah to not legalize same-sex marriage, lest by so doing they impair the validity of other marriage celebrated and formed in their jurisdictions. That has happened before.
For example, at one time courts in England refused to recognize monogamous marriages celebrated in an American territory where plural marriages were or had been permitted. Hyde v. Hyde and Woodmansee, (March 1866).
"There are many powerful public policy reasons why a state might wisely and responsibly choose to define marriage as the union--only--of a man and a woman," said Eldridge. "Many of those reasons relate to the effects upon society of legalizing same-sex marriage."
