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to Section One | to Arts & Entertainment
posted Friday, March 7 2014 - Volume 42 Issue 10
Family and Child Welfare professors submit amicus brief
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Family and Child Welfare professors submit amicus brief

Urge 10th Circuit Court of Appeals to affirm lower court ruling striking down Utah's ban on marriage for same-sex couples

The Tenth Circuit Court of Appeals is considering a stay of December's district court ruling in Kitchen v. Herbert that Utah's prohibition of same-sex marriage is unconstitutional.

On Wednesday, March 5, an amicus brief was filed with the 10th Circuit Court of Appeals on behalf of 40 family and child welfare professors asking the Court to affirm the lower court ruling which found Utah's ban on marriage for same-sex couples unconstitutional. The marriage ban, the professors write, undermines rather than furthers the state's interests in children and child welfare.

The Family and Child Welfare Law Professors amicus brief - co-authored by Joan Heifetz Hollinger (University of California, Berkeley), Courtney Joslin (University California, Davis), and Laura Kessler (University of Utah) - seeks to provide the Court with a more complete and accurate understanding of the multiple purposes of marriage, and its relationship to procreation and parentage.

The Family Law Professors reject the state's contention that the ban is permissible because same-sex couples do not have children who are biologically related to both parents. As they write, 'Utah, like all other states, has never required prospective spouses to agree to procreate, to remain open to procreation, or even to be able to procreate as a condition of marrying.'

Marriage, the professors explain, has always served many purposes, not just ones related to procreation and children. The mutual responsibilities and protections of marriage 'apply to the married couple and most have nothing to do with children. Excluding same-sex couples from marriage and all its attendant legal protections because they allegedly do not provide a certain kind of parenting, when different-sex couples are not required to have children at all, much less biological children, imposes a colossal burden on same-sex couples.'

Equally important, 'Appellants' assertion about optimal childrearing is ... at odds with the social science consensus demonstrating that the key factors for positive outcomes for children are the quality of the parent-child relationship, and the relationship and resources of the parents, not the parents' gender or sexual orientation.'

The professors also explain that 'there is no logical reason to believe that permitting same-sex couples to marry would have any influence on the marital or procreative decisions of different-sex couples, much less cause these couples to care less about their children,' or 'suffer a decline in fertility.... These suppositions, which are central to (the State's) argument, make sense only if same-sex relationships are so abhorrent as to contaminate the institution of marriage to the point that different-sex couples will shun it.'

In the end, the professors argue, denying marriage to same-sex couples undermines the well-being of children. While the ban does nothing to help children raised by different-sex couples, it inflicts direct and palpable 'harms on the children of same-sex couples by denying their families access to hundreds of critical state and federal marital benefits that are conducive to providing stable and secure environments for raising children.'

Kitchen v. Herbert was filed in March 2013 seeking to declare Utah's nine-year-old same-sex marriage law unconstitutional. Judge Robert Shelby ruled in plaintiffs' favor on Dec. 20, 2013.

The Family Law Professors are represented pro bono by Rita Lin and Laura Weissbein of Morrison & Foerster LLP.

Courtesy of Morrison & Foerster LLP

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