By Dave Buer

The 10th Circuit Court of Appeals in Denver heard arguments in Utah’s marriage law (Amendment 3) case, Kitchen v. Herbert.

To help Utahans 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, has provided a citizen’s guide (on video) to the key arguments before the court 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, 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?

In Part 1, the state submits its brief first, which Bill outlines, and then the plaintiffs respond, which Bill also explains. In Part 2, he covers the state’s reply to the plaintiffs’ rebuttal.

Below is a more detailed outline of what Bill discusses in the videos:

Part 1

  • 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.

Plaintiffs respond:

  • 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.

Part 2

State replies to plaintiffs’ rebuttal

  • Race analogy doesn’t work because there are actual, meaningful differences between couples who can provide a mother and a father for children and couples who can’t.
    • Also doesn’t work because of the historical differences.
    • Infertile couples still support state’s ability to encourage mothers and fathers for adopted children, and also provide an example of faithfulness that’s crucial for a successful marriage culture.
    • A lot of precedent for a state’s residents to govern themselves; no clear constitutional provision that’s being violated by the state retaining the laws of marriage that have always existed.
    • State says the Supreme Court already decided this question in Baker.
    • Plaintiffs will say the Supreme Court’s intention in Windsor essentially decided the question.
    • Both sides will tell the 10th Circuit that it doesn’t have the authority to throw out previous Supreme Court decisions.
    • Issues of federalism might come into play.
    • Utah actually values marriage, doesn’t just provide lip service. It is the state with the highest rate of children being raised by their married mother and father. Can Utah continue to live by the things it cherishes most?
    • State points out there’s a lot of reason for uncertainty about what might happen if marriage is redefined. Social science points to evidence that children raised by their mother and father do best on a range of objective social measures.
      • Plaintiffs cite support for same-sex marriage from American Psychological Association, National Association of Social Workers.
      • Plaintiffs point to number of studies that seem to suggest there is no difference for children raised by same-sex couples.

      • State points to large body of social science studies showing, on average, harms greater for children due to increased divorce, cohabitation, single parenthood, step parenting.
      • State’s hypothesis: best for children to be raised by (1) biological, (2) married (3) mother and father
        • Plaintiffs say let us marry, and we’ll take care of (2).
        • State responds they still will not have at least a mother or a father, and at least one parent will not be the biological parent.
  • State points out the studies the plaintiffs cite have many problems.
    • Small sample size.
    • Volunteer participants, not random samples = study measures highly motivate people with a good story to tell.
    • Often have very soft measures, like does the child have good self esteem, or appear to have good social functioning.
    • Often those soft measures are reported by the parents; they are not objective measures that can be verified or falsified.
    • Often use bad comparisons, like children raised by two wealthy women against a single mother.
    • The studies usually do not measure long-term effects, look at relatively short periods in the child’s life.
  • The state cites social science studies that try to overcome the shortcomings of the studies cited by the plaintiffs. Same-sex couples still cannot provide the complementarity that males and females provide to the child or allowing the child to be raised by both biological parents, which social science has shown to be the optimal family formation for children.
    • Regnerus study – used large data sets; looked at objective measures (passing school, living in poverty, on welfare, etc.); reported by the children themselves or the proper reporting body; random, not volunteer samples; participants don’t know why they are being asked certain questions.
      • These studies show there just aren’t that many children being raised by same-sex couples, so the numbers issue is hard to overcome, far fewer still who were raised by same-sex couples from infancy.
      • Because of this, children raised by same-sex couples can essentially be compared to a step-parent situation.
      • These studies show children tend to be raised in somewhat unstable situations.
      • Regnerus doesn’t advocate any child being removed from any parent, just trying to ask what will happen with children raised by same-sex parents. Data shows these children suffer on a range of measures.
      • Plaintiffs say Regnerus study isn’t good because the children didn’t live with same-sex parents for very long.
      • Regnerus responded by pulling those children out of his data set who didn’t live with two women, and he still gets the same result.
      • Plaintiffs say the children should have had to have lived with same-sex parents from birth, a situation which rarely happens, so good data just doesn’t exist for the from-birth scenario.
      • Michigan judge essentially saw that the poorly designed studies formed a bigger pile, so sided with that side even though the smaller set of studies were more valuable, using more valid methods.
      • Same-sex marriage advocates often claim that what children really need is stability; who the parents are doesn’t matter as much.
        • Social science suggests that claim isn’t true; for instance, children of divorce, where their home life is stable post divorce, aren’t better off.
        • Social science shows the most stable relationships are between a married mother and father; all other types of relationships are less stable.
        • Does changing the definition of marriage somehow create a stability in relationships that have not been stable in the past?
          • Such a redefinition would make the law say that marriage is only about what adults want. Therefore, the official message from the state would have nothing to do with stability, it would simply say you’re married as long as it suits your purposes.
  • The ultimate question for the 10th Circuit: Did the Supreme Court already decide this in Baker, or did it essentially take a new position in Windsor?

Dave Buer is communications director for Sutherland Institute.