The state now seeks to defend its ban on same-sex marriage by arguing, rather implausibly, that "Utah's laws [against same-sex marriage] do not discriminate based on sexual orientation."
Removing love and commitment from the equation, the state argues that it has an interest in regulating marriage based on "sexual complementariness." The state argues that Utah laws that restrict gay citizens from marrying, adopting and otherwise protecting their families do not classify individuals based on sexual orientation but instead on the interaction of their anatomies.
The state's effort to gloss over the motivations and legislative history of Utah's ban on same-sex marriage ignores the history of these laws and the intentional impact they have on Utah's gay citizens.
The reality is that Utah's marriage laws target gay citizens for discrimination by purposely excluding them from access to the benefits and protections of civil marriage.
Moreover, "sexual complementariness" cannot be the key to marital rights. Marriage is about far more than sex. Yet according to Utah's appeal, marriage is apparently not all about love, nor even about commitment.
"Love alone," Utah argues, "cannot logically serve as a state interest." The state further contends that "loving a person does not create a right to marry that person."
By ignoring love and reducing marriage to "sexual complementariness," the state demeans the relationship of every married couple and every family. The injury is particularly grave to same-sex couples, whose long-term committed relationships are characterized by the state as mere friendship unworthy of public recognition.
The state denigrates as "adult-centered" the desire of same-sex couples to be married. Yet the steep price of the state's discrimination against gay couples is also paid by their children, who are denied the safety and security of having married parents.
Marriage is fundamentally about the loving commitment of two people to share their lives and the full spectrum of life experiences. As a civic institution, marriage binds two complementary people together for the benefit of those partners, their children and family, and the public. In contrast, Utah's laws including Amendment 3 demean gay citizens from cradle to grave.
The state deserves credit for finally admitting what this case is ultimately about: whether a majority can legislate away the rights of a minority group. "It comes down to this," the state writes. "Thousands of couples are unconstitutionally being denied the right to marry, or millions of voters are being disenfranchised of their vote to define marriage."
The state's admission should prime the U.S. Supreme Court to hear this case. Amendment 3 exists for no purpose other than to discriminate against gay Utahns.
The protection of individual rights under our Constitution is a core function of the judiciary. The Constitution guarantees that all gay people and not merely those living in certain states are entitled to the blessings of liberty and the promise of equal treatment under the law for themselves and their families.
The wheels of justice may turn slowly, especially to those being deprived their fundamental rights. Twice before, after lower courts ruled in favor of gay couples in Utah, the Supreme Court has entered stays, thereby delaying the exercise of marriage rights until the Supreme Court could rule.
So now the time has arrived for the Supreme Court to accept the case of Herbert v. Kitchen and to affirm that all Americans, whether gay or straight, have the fundamental right to marry and be treated equally under the law.
Paul C. Burke, Brett L. Tolman and John W. Mackay led a bipartisan team of lawyers representing the Utah Pride Center to file an amicus brief with the U.S. Supreme Court in the case that successfully challenged parts of the Defense of Marriage Act.