How The Footnotes In Utah’s Anti-Equality Court Brief Reveal A Pro-Heterosexuality Agenda

The new 120-page court brief that Utah officials have filed to defend the state’s ban on same-sex marriage is rife with familiar arguments, and at least one novel legal argument that is particularly offensive. But hidden among all the claims about states’ rights and the well-being of children are statements that reveal an underlying assumption that heterosexuality and different-sex relations are simply superior to homosexuality, bisexuality, and any kind of same-sex relationship.

Here are a few examples from throughout the brief:

Don’t Be So Quick To Call Sexual Orientation A “Fundamental Identity”

In a footnote towards the end of the brief, Utah questions one of the conclusions drawn by the plaintiffs, the same-sex couples suing for the right to marry. They had referred to the Supreme Court case of Lawrence v. Texas, which in 2003 overturned laws that criminalize consensual same-sex sexual activities (and anything else that might be considered “sodomy”). Utah took issue with their description:

Though not relevant to the issues presented, Plaintiffs characterize Lawrence as holding that “sexual orientation is a fundamental aspect of human identity that the state has no legitimate interest in punishing or attempting to change.” Lawrence doesn’t say that, and Plaintiffs have no page citation for such a holding. More important, Utah is not trying to punish nor attempting to change anyone’s sexual orientation.

It’s true that those exact words are not found in Lawrence, but the decision does acknowledge homosexuality as something more than just a sexual act: “When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.” By denying those relationships the same legal protections, Utah is arguably punishing same-sex couples, and as other footnotes suggest, the state’s lawyers might actually prefer some people do change their orientation.

The Marriage Ban Does Not Discriminate Based On Sexual Orientation, Anyway

In an interesting rhetorical trick, Utah’s lawyers use another footnote to claim that there’s no discrimination taking place because everybody is equally allowed to marry a person of the opposite sex. This argument is usually reserved for arguing that banning same-sex marriage doesn’t discriminate on the basis of sex, but here, they claim that it even proves that there is no discrimination based on sexual orientation:

As noted above, Utah law allows every person, regardless of sexual orientation or gender, to marry a person of the opposite sex. Thus, as a technical and logical matter, Utah law cannot be said to classify on the basis of gender or sexual orientation… Of course, for reasons discussed in the text, this Court need not decide whether man-woman marriage laws “discriminate” on the basis of sexual orientation.

In any context, this argument makes no sense. The rhetoric can easily be flipped to say that a man is allowed to marry a woman, but not allowed to marry a man, thus it discriminates on both sex and sexual orientation. But the state’s lawyers might actually believe that there really is no discrimination because it seems to favor even gay people entering different-sex marriages.

Gay People Can Just Marry The Opposite Sex

It’s one thing to claim that the law doesn’t discriminate because gay people can still marry someone they aren’t oriented toward, but another footnote actually suggests that they should do just that:

In fact, some gays and lesbians have chosen to exercise their fundamental right to marry a person of the opposite sex. E.g., Brief of Doug Mainwaring et al.; Brief of Parents And Friends Of Ex-Gays & Gays; see also voice(s) of hope, Obviously, that would be a very difficult choice for gays and lesbians who have already formed or wish to form an abiding, loving relationship with someone of the same sex. But it does highlight the difference between the man-woman marriage definition and a law prohibiting certain people to marry at all — such as a restriction on marriage by inmates serving life sentences.

Note the three citations: 1) Doug Mainwaring, a Tea Party activist who claims to be gay, but is married to a woman, has children, and campaigns against marriage equality; 2) PFOX, an organization that advocates for ex-gay therapy, and 3) Voices of Hope, a Mormon website featuring the testimonials of individuals who acknowledge that they’re gay (or possibly bi, under the umbrella of “same-gender attraction”) but have chosen to be chaste or to marry a person of the opposite sex.


Utah suggests that, even though it may be “very difficult,” people with a same-sex orientation could choose to live the heterosexual lifestyle. Also, if they’re bi, they probably should.

Banning Same-Sex Marriage Encourages Bi People To Go Straight

In another footnote, Utah blatantly promotes biphobia by suggesting that the ban on same-sex marriage helps encourage bi people to live a straight lifestyle:

Such a redefinition would also remove the gentle encouragement the law currently provides to bisexual persons (including people who consider themselves principally gay or lesbian) to form families and raise children with members of the opposite sex rather than members of the same sex.

That’s not how bisexuality works. People who are bi have the potential to feel attraction beyond one gender, but that doesn’t mean they pick a gender and then find a partner. The state is actually suggesting that it hopes that discriminating against same-sex couples will dissuade bi people from being fully bisexual. This actually hurts bi people in unique ways, because it could also foster biphobia from the gay and lesbian community as well. Utah doesn’t hide that it has a purely pro-heterosexual agenda.

Utah Has ‘”A Powerful Interest In Parenting By Heterosexuals”

The brief emphasizes (in the actual text, not footnotes) that “Utah also has a powerful interest in parenting by heterosexuals.” Perhaps the lawyers are engaging in some rhetorical conflation without realizing it, but it means something different to refer to a heterosexual parent — i.e., a parent with a particular orientation — instead of the usual hackneyed arguments about the superiority of parenting units that consist of one mom and one dad. Still, the language suggests that the ban on same-sex marriage law is designed to be pro-heterosexuality. Here’s how the brief claims that overturning the ban would discourage straight guys:

Similarly, Professors Hawkins and Carroll note that redefining marriage in genderless terms would signal to heterosexual men, especially, that they are optional, not central to the well-being of their children, and would thus tend to alienate some heterosexual men from the institution of marriage. Abandoning the gendered definition of marriage would thus likely result in fewer and shorter marriages of heterosexuals, less parenting by heterosexual fathers, more conception by heterosexuals outside of marriage, and less self-sacrificing by heterosexual fathers.

Denying protections to gay or bi fathers somehow ensures that straight fathers are less likely to abandon their families. The argument is nonsensical enough in the context of same-sex vs. different-sex parenting, but with sexual orientation labels it sounds even odder.


The heterosexism on display reveals the very animus that the lawyers are attempting to deny. It’s simply impossible to claim that heterosexuality is better and should be encouraged without simultaneously implying that any same-sex attraction is thereby worse and should be discouraged. Utah is admitting that it believes the state is better off if one group is extended a set of protections that another is denied, which is exactly why the lower court judge ruled against the ban.