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“State catering to heckler’s veto,” says one Utah lawyer on marriage

In technical terms, a heckler’s veto occurs when an acting party’s right to freedom of speech is restricted by the government to prevent a reacting party’s behavior. While it’s not exactlyabout freedom of speech, the issue is about freedom, and the state’s intervention. And as one Utah lawyer is arguing, it’s about the state’s intervention catering to a feared response by one party. Yes, we’re talking about same-sex marriage in Utah once again, as several groups within the state have strong opinions on what families should look like and who can have one. KSL online printed a story about the acting party’s arguments in favor of same-sex marriage, and the Utah lawyer who is claiming that the government’s limitations of freedom to prevent reactionary behavior by strong special interest groups.

If you’ve been following the story since December 20, 2013 in Utah, you’ll know that the U.S. District court struck down Utah’s ban on same-sex marriage when Judge Shelby ruled that the law violates the equal protection clauses in the 14th Amendment. Utah appealed the decision, turning to the U.S. Supreme Court, which issued a stay on January 6, 2014. Surrounding these rulings are outrage, furor, bewilderment, dismay, celebration, triumph and satisfaction—at every stage of the ruling by different parties on different sides of the divide.

Most recently, Utah lawyer Peggy Tomsic filed a 118-page brief in the 10th Circuit Court of Appeals on February 25, 2014. Tomsic’s language is quite impassioned, and she makes an ardent argument on behalf of her clients who “wish their relationships to be accorded the same dignity, respect, and security as the relationships of married couples they know in their state.” Cornerstoned on the U.S. Constitutional right of equal protection under the law, the case made by Tomsic insists that not only are her clients’ partnerships denied legal rights, “but also the common vocabulary of family life and belonging that other Utahns may take for granted.” This Utah lawyer certainly makes a compelling emotional appeal through phrases such as, “”No matter how deeply they care for one another or how long they have stood by one another, for better or for worse, in sickness and in health, Amendment 3 treats plaintiffs and other same-sex couples as legal strangers to one another.”

But it’s not just an emotional issue, and Tomsic’s legal arguments should come under scrutiny, too. Utah’s argument in upholding their ban on same-sex marriage rests on its presumed constitutional authority to define marriage, “and that the union of a man and a woman is the best setting to bear and rear children.” The state’s case goes on to purport that traditional marriage “furthers Utah’s interests in accommodating religious freedom and preserving social harmony, while redefining marriage would be a recipe for social and religious strife.” Well. If that’s not a heckler’s veto, I’m not sure what is. Tomsic seems to think so, stating that “the principal justification proffered by the state—a purported interest in preferring some parents over others—is not even a legitimate governmental interest.”

This is a legal battle for the history books, and only time will tell how it shakes out, but every new development seems to have something for the public to sink their teeth into.

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