State Attorneys In Utah Defend Same-Sex Marriage Ban, Cite ‘Responsible Procreation’ And ‘Optimal Child Rearing’

State attorneys in Utah are defending their state's voter-supported same-sex marriage ban, Amendment 3, based largely on issues surrounding procreation and parenting ability. The defense comes after three same-sex couples filed a lawsuit in March seeking for District Judge Robert Shelby to rid the constitution of the amendment on grounds of unconstitutionality based on the 14th amendment's due process and equal protections clauses. Two couples, Derek Kitchen and Moudi Sbeity, and Laurie Wood and Kody Partridge, were denied marriage licenses in Salt Lake; another, Karen Archer and Kate Call, were married legally in Iowa but receive no recognition from their home state.

UtahKSL Utah reports:

The state says the case doesn't turn on who is right and who is wrong about what marriage should be, but on who should decide. The Constitution does not prevent Utahns from defining marriage as between a man and a woman with children's interests at the forefront, the Utah Attorney General's Office argues.

"The resolution of this case will determine much more than whether marriage licenses will be issued to some same-sex couples. It will necessarily impact whether Utah or any other state can maintain the principle that children should be reared by a married mother and father whenever possible … "

According to the state, "the traditional definition of marriage rationally promotes legitimate state interests in promoting responsible procreation, and in promoting the optimal mode of child rearing, among others."

Peggy Tomsic, the couples' attorney, cited the Supreme Court decisions on DOMA and Prop 8 in her case against Amendment 3. She argued that Utah's lack of recognition for marriages outside the state is now unconstitutional, and that the negative rhetoric about parenting skill is damaging for children of same-sex couples and should be remedied by recognizing their marriages.

The purpose of the state's Amendment 3 was to "further privately held moral views that same-sex couples are immoral and inferior to opposite-sex couples," she wrote.

Damaging, indeed. After state and county officials had begun to show support in Pennsylvania, New Mexico of course, and even North Carolina, this news out of Utah is dispiriting. The case is set to begin on December 4th. 


  1. renovato says

    Marraige – the formation of a mutual next of kin intimate family relationship between two mutually consenting grown-ups, for their mutual benifit and support and the support and nurturing of any adopted or natural children of the couple.

    A common definition of marriage before religion poked its nose in and tried to tell everyone else what to do!

  2. PJ says

    So, let me get this straight (no pun indented!). Their argument is this:

    1. Marriage is good for children and families.
    2. ???

    3. Therefore, gays should not marry.

    How does this work?

  3. Howard says

    I would agree that this case turns on who should decide. I would argue that the people get to decide, and that it is the courts job to reverse decisions made by the people that are clearly unconstitutional. To me this case is about “the people” creating laws that disadvantage a minority that are disapproved by the majority, clearly unconstitutional. Let’s hope the courts see it this way, but I won’t be surprised if the Utah courts cave to political pressure.

  4. e.c. says

    Surprising that they trot out the “marraige” is about children” argument when it so easily destroyed by the fact that there is no requirement for straight couples to produce children or that any couple that chooses not to, is unable to or past the age of producing offspring should similarly be denied the right to marry.

    Just admit, you don’t like gay people.

  5. AnotherSteve says

    Utah is a Mormon theocracy. So they are effectively up against the Mormon cult.

    The district court judge was a Mormon with a BYU degree, whose opinion was basically pure theology.

  6. Jack M says

    You mean responsible procreation, like the Mormons, who squeeze out as many kids as possible?

  7. HadenoughBS says

    I agree with ANOTHERSTEVE that this homophobic SSM position shouldn’t be a surprise. IMHO, Utah is the closest concept we have in the US of a Vatican City, i.e., a government closely aligned with a major church or religion. In this case, the Mormon religion. The concept of separation of church and state ain’t so popular in Utah. Good luck to those suing to establish their equal rights there.

  8. Lymis says

    By this logic, they should be forced to prove in court that the very best gay parents are worse than the very worst straight parents who are allowed to marry and retain custody of children.

    That bar is unspeakably low.

    As soon as you say people who are not optimal parents shouldn’t be allowed to marry or raise kids, you’d better be annulling a buttload of straight marriages and rounding up herds of children.

    And the courts better realize that and refuse to buy into it.

  9. Utahn says

    We here in Utah are very proud of the high rate of suicides of males between the ages of 15 and 30, most of which are Mormon.

  10. Sam says

    So if a woman or man is unable to bear children, they cannot get married by that logic. So any post-menopausal woman that is single must remain single for their life. This is where the “children” argument falls flat.

    Even back in 2010, it was obvious that “interstate marriage laws” is what would undo the gay marriage bans. Only a few states do not allow out-of-state couples to marry in them so those might be a bit more difficult to overturn.

  11. jleo71 says

    No, people should not be allowed to vote on the rights of others. And to quote James Bovard, “Democracy must be something more than two wolves and a sheep voting on what to have for dinner.”

  12. Gregory In Seattle says

    Then surely he would support a voter initiative that would make procreation a requirement for getting — or at least staying — married. Because, you know, that is not currently a legal requirement in Utah.

  13. Gregory In Seattle says

    @PJ – When the Washington Supreme Court upheld our state’s Denial of Marriage Act in 2006, the plurality’s “logic” was:

    * The purpose of marriage is procreation.

    * The state has a vested interest in preserving marriage for this purpose.

    * The state therefore has the right to deny marriage to same sex couples, as they are incapable of procreating.

    In response, a group of activists filed Initiative 957, which would have given married couples 3 years to procreate or else their marriage license would be revoked. Alas, it didn’t get enough signatures to make it on the ballot, but it did make the whole “marriage = procreation” argument the focus of international ridicule. For a few years, anyway.

  14. Bill says

    @ e.c.: their reasoning – remember that they are Mormons – is that, if straight couple who can’t have children get married, “Heavenly Father” will fix everything.