Brief of Amici Curiae Family Law Professors in Support of Plaintiffs-Appellees and Affirmance in Kitchen v. Herbert

Abstract

This amici curiae brief was filed in the United States Circuit Court for the Tenth Circuit on behalf of 40 family and child welfare law professors in Kitchen v. Herbert, the federal case challenging the state of Utah's ban on same-sex marriage.

The amici brief seeks to provide the 10th Circuit U.S. Court of Appeals with a more complete and accurate understanding of the multiple purposes of marriage, and its relationship to procreation and parentage. The right to marry, the Professors explain, has never been conditioned on an ability or willingness to procreate. Amici also explain that Utah's preference for "dual gender" parenting is inconsistent with constitutional principles, and they show that there is no legal basis for any assertion that federal law favors biological parentage over the decisions of many married couples - both opposite-sex and same-sex - to adopt children or conceive children through assisted reproduction. Finally, amici demonstrate that Utah’s same-sex marriage ban undermines rather than furthers the state’s interests in children and child welfare.

Keywords: marriage, right to marry, lesbian, gay, equal protection, rational basis, procreation, children, biology, family, children, irrational, animus, Utah

JEL Classification: K36