Thursday, February 6, 2014

Utah's Could Likely Might Arguments

As I was reading through the State of Utah’s recently-filed brief to the 10th Circuit Court of Appeals, I began to notice something: the number of times that words like “could,” “likely,” “might” and “could” were used in advancing Utah’s arguments.

I’m sure that the plaintiffs'  attorneys will address this in their brief, but I thought it might be informative and instructive to highlight some of the passages of the brief that use one or more of these words (and highlight how outrageously silly some of Utah's arguments are):

“[I]n a variety of ways, redefining marriage in genderless terms would LIKELY reduce, over time, the proportion of children being raised in one of [Utah’s preferred] arrangements [for raising children] —thus placing at serious risk the welfare of children who will be raised in other arrangements as a result.”

“The State has a compelling interest in ensuring adequate reproduction and, conversely, in avoiding a definitional change that (over time) COULD help send its birthrate below replacement levels.”

“Utah’s self- sacrificing, child-centric view of marriage and parenting is important to a range of parental decisions beyond ensuring that the child is raised by both her father and her mother. For example, it MIGHT encourage parents to forego abusing alcohol or drugs; avoid destabilizing extramarital affairs; avoid excessively demanding work schedules; or limit time-consuming hobbies or other interests that take them away from their children.”

“[C]ompared to children born in all the States, a child born in Utah has the best chance of knowing and being reared by his or her biological married mother and father. That fact also LIKELY explains why Utah has a very small percentage of its children growing up in poverty—15%, the fourth lowest in the Nation, compared to a national average of 23%. It also LIKELY explains why Utah children, even in the lowest-income households, have one of the highest rates of upward mobility.”

“[T]he loss of the State’s clear message in favor of biological mother-father parenting within marriage would LIKELY result in a higher percentage of couples conceiving children without the stability that marriage would otherwise bring. “

“[A group of scholars cited by Utah in its argument] show that ‘[s]ame-sex marriage . . . would undermine the idea that children need both a mother and a father, further weakening the societal norm that men should take responsibility for the children they beget.’ Over time, this too would LIKELY lead to more children being raised—and for longer periods—without both of their biological parents.” 

“[A] genderless definition of marriage would LIKELY increase the number of children being raised by same-sex parents. That could happen because the couple decides to raise together an existing child of one of the partners. Or it could result from the conception of a new child through surrogacy or sperm-donation. Either way, such children will not benefit from the State’s preferred mother-father parenting model.” 

“[I]f the traditional male-female aspect of marriage were thrown out as irrational, it would LIKELY become more difficult to resist other innovations that would lead to additional children being raised without a father or mother [such as group marriage].” 

“[A] court-ordered redefinition of marriage COULD WELL lead to its wholesale ‘privatization’ [Utah’s word for civil marriage, which is the practice in most European countries and other countries around the world]—for example, by enactment of a civil union regime for all couples, with religious and other organizations being free to offer the title of “marriage” as they see fit … In Utah and elsewhere, judicial invalidation of the traditional definition of marriage COULD WELL create a broad political consensus for such a radical step. Such a development—and the consequent reduction in governmental encouragement for marriage—COULD WELL cause a substantial decline in the public’s interest in marriage, similar to the decline already seen in many parts of Europe.”  

“And if marriage is privatized, or if it comes to be understood as primarily for the benefit of adults rather than children, then those who wish to have children (or to engage in conduct that could lead to children [umm, do they mean having sex?]) MAY choose not to marry if they believe other social arrangements would better serve their individual needs.” 

“Governments WOULD LIKELY be pressured—and PERHAPS agree—to revoke the tax-exempt status of churches or other non-profit religious organizations that refuse on religious grounds to recognize same-sex marriages or to provide benefits to same-sex couples on the same terms as husband-wife couples. 

“Governments WOULD LIKELY be pressured—and PERHAPS agree—to investigate, prosecute and punish people in wedding-related businesses for refusing on religious conscience grounds to assist with same-sex weddings. 

“Governments WOULD LIKELY be pressured—and PERHAPS agree—to punish school teachers for refusing on religious conscience grounds to endorse same-sex marriage or for expressing contrary views. 

“Government licensing agencies WOULD LIKELY be pressured—and PERHAPS agree—to investigate and punish counselors for refusing on religious conscience grounds to counsel same-sex married couples on the same terms as heterosexual couples. Religion-based conflicts between public schools and parents WOULD LIKELY increase as children are taught about sexuality and marriage in ways that contravene parents’ and students’ deeply held religious beliefs. 

“Governments WOULD LIKELY be pressured—and might agree—to punish religious colleges and similar institutions for adhering to their views on marriage in such things as married student housing, hiring, and curriculum.”

All of these arguments are based a politics of fear - a politics that plays better in the political realm than in the legal one, where speculation, especially without evidence to back it up, is frowned upon. They are also reflective of a worldview that mixes religion with law - a topic that I will address tomorrow.

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