‘To Perpetuate the Human Race,’ Hey?

SALT LAKE CITY (CN) - Lawmakers claimed they amended the Utah constitution "to perpetuate the human race" by prohibiting same-sex marriage, but it's unconstitutional discrimination, three couples claim in Federal Court.

Lead plaintiff Derek Kitchen and five others sued Gov. Gary Herbert, Attorney General John Swallow and Salt Lake County Clerk Sherrie Swensen.

Amendment 3, approved by Utah voters in 2004 and enacted Jan. 1, 2005, "denies gay and lesbian individuals the opportunity to marry civilly and enter into the same officially sanctioned family relationship with their loved ones as heterosexual individuals are granted the opportunity to do; and also denies same-sex couples legally married in other states from having their marriage recognized in the State of Utah as an officially sanctioned family relationship with their loved ones," the complaint states.

It adds: "Proponents of Amendment 3 - Utah State legislators - stated that Amendment 3 was necessary to: 'maintain public morality, the justified preference for heterosexual marriage with its capacity to perpetuate the human race and the importance of raising children in that preferred relationship.' They further stated that Amendment 3 would ensure the continuation of 'the ideal relationship where men, women and children thrive best and that is an enduring natural marriage between a man and a woman.' Thus, the express and stated purpose of Amendment 3 was to further privately held moral views that same-sex couples were not moral and were inferior to heterosexual couples. These are the same types of justifications that were used to advance and preserve racist laws, directed against non-white minorities, such as laws banning interracial marriage." (Citations omitted.)

Nine states - Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York, Maine, Maryland and Washington - and the District of Columbia allow same-sex marriages.

Utah has historically done little to support the rights of gay men and lesbians, stripping them of "rights afforded to all other citizens," the plaintiffs say.

"Gay and lesbian individuals have faced a long and painful history of societal and government-sponsored discrimination in this country," the complaint states. "Although their sexual orientation bears no relation to their ability to contribute to society, gay men and lesbians have been singled out for discriminatory treatment. They have faced unconstitutional criminal penalties for private sexual conduct between consenting adults, harassment, hate crimes, and discrimination in employment and many other areas. They have even been the subject of laws stripping them of rights afforded to all other citizens.

"Utah has been among the states that have enacted laws stripping gay men and lesbians of rights afforded to all other citizens. Gay men and lesbians also have been the subject of hate crimes in Utah."

The amendment is not only discriminatory and unconstitutional, but subjects gay men and lesbians to "severe humiliation" and "psychological harm," the plaintiffs say.

"Plaintiffs' inability to marry and to have their relationship recognized by the State as a marriage with the protections, dignity and respect accorded to married opposite-sex couples has caused them significant hardship, including but not limited to the deprivation of rights guaranteed by the 14th Amendment and Utah state laws afforded opposite-sex married couples, and subjected them to severe humiliation, emotional distress, pain, suffering, psychological harm, and stigma."

The complaint adds: "The real purpose behind Amendment 3 and the Marriage Discrimination Statutes is prejudice against gay men and lesbians based on private moral views that are not supported by a legitimate factual basis."

The plaintiffs sued on the eve of this week's arguments at the U.S. Supreme Court over California's Proposition 8, prohibiting gay marriage. Commentators on Tuesday appeared to believe the justices might leave the issue to the states.

The plaintiffs seek a permanent injunction enjoining enforcement of Amendment 3 or any other Utah law that seeks to exclude gay men and lesbians from access to civil marriage, in violation of due process and equal protection.

They are represented by Peggy Tomsic with Magleby & Greenwood.

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