Gay Marriage Ruling Would Be 'Judicial Wrecking Ball,' Say Utah Lawyers

Attorneys defending Utah's ban on same-sex marriage said in their most recent court filing that legalizing gay marriage would be an "unprincipled judicial wrecking ball" that would destroy state authority.

In its 120-page reply, submitted late last week, Utah told the Denver-based 10th Circuit Court of Appeals that allowing a judge to determine the constitutionality of a state's same-sex marriage ban undermines the state's sovereignty.

Utah's special assistant, Attorney General Gene Schaerr, wrote in the court filing that lifting a state's same-sex marriage ban is not akin to previous court rulings that lifted interracial marriage bans, but rather it is "an unprincipled judicial wrecking ball hurtling toward an even more important arena of traditional state authority."

"It would impose by judicial fiat rather than democratic processes the novel principle that marriage is whatever emotional bond any two [or more] people say it is. It would thereby enshrine in federal law the corrosive principle that moms and dads are interchangeable and, ultimately, irrelevant to children."

The attorneys also sought to denounce the argument that same-sex marriage is a civil rights issue, instead calling it a "political quandary."

Utah's lawyers had the final say in their appeal of a December ruling by Judge Robert J. Shelby, who determined the state's voter-approved ban on same-sex marriage to be unconstitutional, saying it violated couples' right to due process and equal protection under the U.S. Constitution's 14th Amendment. The ban was approved by 66 percent of voters in 2004. Lawyers for the state are now appealing Shelby's decision, while the plaintiffs who originally challenged the state's gay marriage ban are urging the appeals court to uphold Shelby's ruling.

The three same-sex couples challenging Utah's gay marriage ban said in their Feb. 25 court filing that the ban "cemented discrimination" by excluding gay couples from having the same benefits of heterosexual couples found in "virtually every aspect of life, from the mundane to the profound."

Now that Utah's lawyers have filed their response, the 10th Circuit of Appeals will proceed with oral arguments set for April 10 in Denver, Colo. The same court will also begin hearing a similar appeal to an Oklahoma judge's ruling that overturned the state's same-sex marriage ban on April 17.

Numerous advocacy groups, attorneys general, religious organizations and companies have filed amicus briefs, both arguing for and against the gay marriage bans in Utah and Oklahoma. According to the Daily Herald, the briefs averaged 45 pages each and were split nearly evenly on both sides.

The Family Research Council was one of the groups that issued an amicus brief in support of Utah's ban.

"[T]he novel and unprincipled fundamental rights analysis on which [Shelby's ruling is] based are deeply flawed," wrote Paul Linton, an appellate attorney who submitted the brief on the conservative group's behalf.

"The principal defining characteristic of marriage, as it has been understood in our 'history, legal traditions, and practices,' is the union of a man and a woman. Properly framed, therefore, the issue before this Court is not whether there is a fundamental right to enter into a marriage with the person of one's choice, but whether there is a right to enter into a same-sex marriage."