To help Utahns get a better grasp on this historic case, Bill Duncan, Sutherland Institute’s director of the Center for Family and Society and executive director of the Marriage Law Foundation, provides a citizen’s guide to the key arguments before the 10th Circuit Court of Appeals in the Utah marriage amendment case.
In part 1, Bill discusses most of the arguments presented by the state and the plaintiffs. In part 2, which will be released tomorrow, Bill discusses the likely oral arguments, the social science arguments and the history of the changes to marriage law and the resulting consequences.
Bill tells us that the key question for the 10th Circuit to answer is: Has the Supreme Court already decided this issue? The State submits its brief first, which Bill outlines, and then the plaintiffs respond, which Bill also explains.
- Why is the state interested in marriage?
- Sound social science research shows children do better when raised by a mother and a father.
- State shows how changes to state law alter the incentives and disincentives of people to marry or not to marry.
- The state disagrees with the plaintiffs and Judge Shelby (the Utah federal judge who struck down Amendment 3, Utah’s marriage amendment passed by 66 percent of Utah voters in 2004) when they say the state’s primary role in marriage is to approve of the lifestyle choices of its residents. The state argues that that idea has negative consequences.
- State cites Baker case as controlling, or the case that stands as precedent for this case. In the Baker case, the Supreme Court said it isn’t going to issue a complete opinion on the case because it is so obvious there is not even a constitutional issue here. The Court said there is no federal issue; there is nothing in the U.S. Constitution that requires us to weigh in; there’s nothing in the U.S. Constitution that requires same-sex marriage.
- The plaintiffs, Judge Shelby and other federal judges say law and society are evolving in our notions of what the Constitution requires and so Baker shouldn’t be controlling. State says no, the Constitution doesn’t change meaning over time.
- The state argues that state law should be the standard of law in this case and in most cases, and that people of the state should be able to govern themselves except in exceptional cases.
- Plaintiffs argue that the state marriage amendment is essentially like racism, and therefore should be overturned by the courts. The state disagrees with the idea that treating same-sex couples as not married is the same as not allowing white and black couples to marry. State argues it’s not the same for several reasons.
- State explains the rationale for why it treats human relationships differently.
- Baker v. Minnesota is outmoded; a lot of things have changed since then so there’s no point in applying that case to this situation.
- Plaintiffs try to convince 10th Circuit that U.S. Supreme Court has already essentially decided this issue in the Windsor case and therefore the Constitution requires every state to change its laws to allow same-sex couples to marry.
- Justice Kennedy said a lot of things in support of the authority of the states, which makes this argument a challenge for the plaintiffs as they try to convince the 10th Circuit to invalidate state laws.
- Try to establish that the Constitution really does require states to allow same-sex marriage. Rely on recent cases, especially by Justice Kennedy, which isn’t surprising because all sides know they have to convince Justice Kennedy, as he is often the swing vote in close cases.
- Try to show that all the reasons the state cites for defining marriage as it has are irrational at best or done out of spite, hatred and animus at worst.
- Difficult because they essentially have to say the 66 percent of Utah voters who voted for the marriage amendment did so simply to persecute same-sex couples.
- Plaintiffs argue that the state is in control of marriage and therefore has the power to get everybody to accept that one’s sexual attractions are no different than other human characteristics.
- The infertile couple argument put forward by the plaintiffs, and the state’s response.
- Plaintiffs argue that the 14th Amendment is being violated — states can’t deny to individuals due process of law and equal protection under the law.