Marriage in Utah

This past Tuesday, Utah became the first state to seek a U.S. Supreme Court ruling on a law banning same-sex marriage. That state’s attorney general is hoping that the Court will reverse a ruling by the Tenth’s Circuit Court of Appeals. That ruling had struck down an amendment to Utah’s constitution limiting marriage to opposite-sex couples.

Let us consider how Utah explains its underlying position. And, as generously as possible, let us consider what to make of it.

In its petition seeking Supreme Court review, Utah appeals to the political prerogative of its citizens and their elected representatives to legislate marriage policy. The petition contends that the Tenth Circuit’s ruling “deprives Utah citizens of the ‘fundamental right’ to ‘act through a lawful electoral process’” to enact a statute reflecting their moral convictions. In that stance, we can hear echoes of the centuries-old assertion that, because of their distinctive moral views, Utahns deserve a measure of political autonomy. To the federalists on SCOTUS, this claim may be compelling. Who are the federal courts to tell the people of Utah that their moral convictions may not be encoded into law?

Utahns’ moral views are at the heart of the complaint, the petition asserts. What are those views? Purportedly, that the vast majority of Utahns understand marriage differently from how others do. According to the petition, the underlying issue is not quite what it seems. The issue is not that one or the other side of the marriage issue favors equal treatment under law, but that the sides hold divergent concepts of what marriage is and what it does. Allegedly, Utahns’ view of marriage does not hinge on the exclusive validity of opposite-sex unions per se. To be valid, they believe, marriage needs to do something more than bring together a man and woman.

What is it that renders a marriage moral and legitimate? According to the petition, morality and legitimacy are matters of how marriage functions in society. The function of good and genuine marriages is not to bring happiness or wellbeing to adults. Marriages do not exist to make people’s lives fuller and richer. Utahns allegedly reject the idea that “mere loving relationships” of any sort are the rightful basis for state-sanctioned union.

In rejecting this so-called “adult-centric view,” Utahans supposedly insist that marriage be “biologically based, primarily child-centered, and [possessing] a conjugal meaning.” The “primary purpose” of their concept of marriage lies in “uniting every child to his or her biological mother and father.” The brief maintains that Utahans have historically and consistently subscribed to the “child-centric” concept, while the adult-centric view has remained foreign to Utah’s culture.

The core of the state’s constitutional claim is that “the people of the state of Utah retain the right to create laws recognizing their own deeply-held beliefs.” And, more specifically, the petition insists that “Utah has long exercised its power to define marriage.” Because “the definition and regulation of marriage” historically “has been treated as being within the authority and realm of the separate States,” the state of Utah is entitled to make marriage policy consonant with the values embraced continuously by its popular majority—values that preclude the legalization of non-conjugal marriage.

Utah's Petition for a Writ of Certiorari 

Let’s put aside Utah’s claim that sexual minorities do not deserve constitutional protection, that the Fourteenth Amendment’s Equal Protection Clause does not apply to marriage, and that there is no fundamental right to marry an adult of one’s choosing. Let’s instead open-mindedly consider Utah’s celebration of “child-centric” marriage. How might marriage conform to that principle? Does it ever actually do so? Might Utahns possibly adhere to it?

Creating an optimal family setting for any children present seems like a good thing. But how can we anticipate the conditions that would best serve children? Having two parents present would seem useful, but single parents often provide wonderful upbringings, especially with other loving adults around. Perhaps we could require an examination for mental fitness. Perhaps we could demand that prospective parents demonstrate a history of responsible behavior. Perhaps a minimum family income is in order. But none of these seems either necessary or sufficient for providing a loving, caring upbringing. Nor does the presence of a mother and a father, despite religious conservatives’ claims to the contrary. Anyone who has spent time with same-sex parents and their children knows this first hand.

It seems difficult at best to anticipate the optimal circumstances in which to raise children. Formulas for doing so are woefully inadequate. Utah’s formula certainly falls short, as it would—and historically has—permitted the raising of children in fundamentalist communities, with charismatic leaders, where personal boundaries are violated as a matter of course. Can we even take Utah at face value when it talks about “child-centricity”?

Exactly how far would Utah be prepared to go to ensure that marriages be “biologically based, primarily child-centered, and [possessing] a conjugal meaning”? Would the state be ready to require that wives be of childbearing age? Would the state require prospective couples to sign forms requiring them to attempt to bear children? Would the state dissolve infertile marriages? Would it set a mandatory minimum—seven, say—of children to be generated by every couple? Would it penalize couples who failed to meet these requirements?

Indeed, it is unlikely that many Utahns themselves would adhere to such a formula—as opposed to requiring others to conform to it. Indeed, would most residents of any state ever be willing honestly to forego marriage as a “mere loving relationship” and instead choose spouses solely for their reproductive capacity? Are many Utahns eager, all declarations aside, to ignore interpersonal chemistry and/or romantic attachment when choosing a partner? It seems doubtful. It seems much more likely that Utah is looking simply to ban same-sex marriages.

We owe it to Utah to take seriously its claims that its residents recognize a conception of marriage entirely different from what most Americans accept. But those claims, under scrutiny, prove spurious.