How I Would Argue Against Shelby's Decision

   If I were the lawyer, I think I might argue the appeal against Judge Robert J. Shelby's decree on same-sex marriage this way:
   1. By pointing to and driving home the significance of a study by Mark Regnerus. Released in 2012, the study indicated children have been at a disadvantage if raised by parents who at some point have had same-sex encounters. Now, hasn't it always been said that our rights end where another person's nose begins? If we are harming another person, his or her right trumps our right.
    And, who would want to harm a child? It is simple: Regnerus's study does show harm. You can argue, it is not significant harm. You can argue, the study was flawed. You can argue, the disadvantage to the children is not inherent in being raised by parents who have had same-sex, but in the stigma the children face in being raised by them, and that that would change once society accepts same-sex parenting. But, whatever you argue, the study remains. It does show harm. It is recent. It is timely. It is under attack, but anytime someone opposes something, they look for flaws in it. I would review the methodology and explain to the court why it was good, solid, factual study.
   2. The Fourteenth Amendment cannot be considered in a vacuum.  We cannot take the provision that all people deserve the same privileges and immunities and apply it to same-sex marriages and not apply it to anything else. If it applies to same-sex marriages, then it applies to many of our entitlements. Why should one person get a government grant because he or she chooses a life path of college while another very diligent person seeks instead to start a business? If we are not in the business of picking one life style above another, because of the privileges and immunities promise in the Fourteenth Amendment, then that applies to picking work instead of college the same as it applies to picking same-sex marriage instead of heterosexual marriage.
   3. I would argue, there is a difference between saying gays and lesbians do not have the right to live together and saying we are not going to recognize it as a marriage.
   4. I would argue, gays and lesbians should be treated with love and dignity. I would argue, there should be no law that calls for the ridicule of another person. But, there is nothing in Utah's Amendment 3 that calls for mocking or degrading or ridiculing those in same-sex marriages. I would argue that it is this type of discrimination that is wrong, this type of treatment that abridges their rights. That they do not have such things as tax benefits places them in a category with many others, and no one has regarded it as discrimination until this point. Government should be allowed to encourage some life choices, but it should never legislate ridicule. We realize ridiculing is wrong, is a treatment that cannot be institutionalized by government, and we have not taken that path with our Amendment 3.

(Post updated and edited 1-2-14, and 3-28-14)

http://legaltimes.typepad.com/files/utah-ssm.pdf