Earlier this year, the U.S. Supreme Court declined to hear the merits of California’s state constitutional amendment that barred same-sex marriage in Hollingsworth v. Perry because a private party could not step into the shoes of the state government of California which had refused to appeal the lower court’s decision. While this allowed lower court opinions overturning Prop 8 to stand, opening the door for same-sex marriage in California, it set no national precedent.
In order to obtain a ruling on the merits from the nation’s high court, same-sex marriage advocates have now filed a lawsuit against Utah, which is expected to defend its voter-passed constitutional prohibition on same-sex marriage (Amendment 3) at every court.
In response to the federal suit, the state of Utah is arguing that “same-sex couples, who cannot procreate, do not promote the state’s interests in responsible procreation (regardless of whether they harm it).” Additionally, Utah argues that the law is not discriminatory because “neither a man nor a woman may marry a person of the same sex.”
Same-sex marriage advocates are arguing in opposition that the choice of a marriage partner is a “fundamental right and liberty interest.”
The courts will likely require the state to meet the standard of showing that Amendment 3 meets a compelling governmental interest. In order to do so, the state will have to identify the harm caused by allowing same-sex couples to marry.
A similar lawsuit is being brought in Michigan by a lesbian couple. Michigan is using a different tactic in defending its law, arguing that the Supreme Court’s decision on DOMA (United States v. Windsor) gives states the authority to regulate marriage.