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Response to same-sex marriage appeal due

By Andrew Adams and Mary Richards, | Posted - Feb 25th, 2014 @ 10:13am

SALT LAKE CITY — The plaintiffs in the case against Utah's voter-approved ban on same-sex marriage are on deadline to respond to the state's appeal.

Derek Kitchen and Moudi Sbeity have until midnight Tuesday to file their response with the 10th Circuit Court of Appeals in Denver.

Their case convinced U.S. District Judge Robert Shelby to strike down Amendment 3, which defines marriage as being a union between a man and a woman.

Seventeen days later, the U.S. Supreme Court issued a stay on same-sex marriages in the state, requiring that the ceremonies stop being performed until the state's case is heard in the 10th Circuit Court.

The earliest that could happen is March.

Shelby's ruling found that Amendment 3 violates rights to due process and equal protection as set forth in the 14th Amendment to the U.S. Constitution.

The Utah Attorney General’s Office, in its appeal, basically argued that states are entitled to establish their own marriage laws. State lawyers cited a U.S. Supreme Court ruling that observed states have broad authority to regulate the subject of domestic relations.

AGs not required to defend discriminatory laws, Holder says

U.S. Attorney General Eric Holder says his state counterparts do not have to defend laws in court that they think are discriminatory. He cited the 1954 Brown v. Board of Education case that led to public school integration.

At least 30 states have laws or constitutional amendments defining marriage as only between a man and a woman, but more democratic attorneys general are now refusing to defend those laws in court.

Some Republicans and groups fighting to keep traditional marriage say a state attorney general paid by taxpayers is obligated to defend that state's laws, whether they agree with the policy or not.

University of Utah law professor Wayne McCormack talked about it on Utah's Morning News with Grant and Amanda.

"Some people take the position even then, the attorney general has a fiduciary duty to the Legislature as his client, that he has a duty to defend whatever the Legislature does. Other people say no, the attorney general has a separate independent duty to the public, which means the attorney general has to make his or her own assessment of the validity of a statute," he said.

McCormack said it seems to him that if a state does something blatantly unconstitutional, the attorney general has no obligation to defend it, like separating public schools by race.

"So there's a judgment to be made," he said.

Depending on state law, if an attorney general refuses to defend his or her state's laws, it could be an impeachable offense where they are not complying with their duty, McCormack added.

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