2:13-cv-00217 #35

PHILIP S.
LOTT (5750)
STANFORD E. PURSER (13440)
Assistant Utah Attorneys General
J OHN E. SWALLOW (5802)
Utah Attorney General
160 East 300 South, Sixth Floor
P.O. Box 140856
Salt Lake City, Utah 84114-0856
Telephone: (801) 366-0100
Facsimile: (801) 366-0101
Email: phillott@utah.gov
Email: spurser@utah.gov
Attorneys for Defendants Gary R. Herbert and John E. Swallow

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

DEREK KITCHEN, individually; MOUDI
SBEITY, individually; KAREN ARCHER,
individually; KATE CALL, individually;
LAURIE WOOD, individually; and
KODY PARTRIDGE, individually,

Plaintiffs,

vs.

GARY R. HERBERT, in his official capacity
as Governor of Utah; J OHN SWALLOW, in
his official capacity as Attorney General of
Utah; and SHERRIE SWENSEN, in her
official capacity as Clerk of Salt Lake
County,

Defendants.

APPENDIX IN SUPPORT OF STATE
DEFENDANTS MOTION FOR
SUMMARY JUDGMENT

Civil Case No. 2:13-cv-00217-RJ S

J udge Robert J . Shelby

TABS 18 TO 21a
(150 180)
Case 2:13-cv-00217-RJS Document 35 Filed 10/11/13 Page 1 of 42
ii

APPENDIX
TABLE OF CONTENTS

Tab # Description Page

PART ONE
LEGAL MATERIALS

1. Utah Code 30-1-2

1
2. Utah Code 30-1-4.1

2
3. Utah Constitution Art. 1, 29 (Amendment 3)

3
4. H.J .R. 25, J oint Resolution on Marriage (as originally filed)

4
5. H.J .R. 25, J oint Resolution on Marriage (Senate Floor Amendments)

6
6. H.J .R. 25, J oint Resolution on Marriage (final, reflecting Senate amendments)

7
7. Chart: The definition of marriage: State statutory and constitutional
provisions
9
8. Chart: The definition of marriage: State ballot measures

13
9. Chart: The language of State constitutional bans on domestic partnership and
other non-marital unions
18
10. Chart: Court decisions on the marriage issue

23
11. Chart: Pending cases on the marriage issue

25
12. J urisdictional Statement, Baker v. Nelson, No. 71-1027 (U.S. Supreme Court
Feb. 11, 1971)
27
13. Amicus curiae brief of Social Science Professors, Hollingsworth v. Perry, No.
12-144, and United States v. Windsor, No. 12-307 (U.S. Sup. Ct. J anuary
2013)
40
14. Amicus curiae brief of Scholars of History and Related Disciplines,
Hollingsworth v. Perry, No. 12-144 (U.S. Sup. Ct. J anuary 2013)
81
15. [Reserved]

16. [Reserved]

iii

PART TWO
MATERIALS ON ADJUDICATIVE FACTS

17. Affidavit of William C. Duncan and Exhibit 1 (curriculum vitae)

127
18. Excerpts from Utah Voter Information Pamphlet, General Election,
November 2, 2004
150
19. Vote count on Amendment 3, by county, with totals, and with percentages

155
20. Campaign materials for Amendment 3

156
21. Campaign materials against Amendment 3

171
22. New accounts, press releases, and editorials regarding Amendment 3

183
23. Fund-raising and expenditures in the Amendment 3 campaign

222
24. Affidavit of Dr. J oseph P. Price and Exhibit 1 (curriculum vitae)

223
25. [Reserved]

26. [Reserved]

PART THREE
MATERIALS ON LEGISLATIVE FACTS

27. INSTITUTE FOR AMERICAN VALUES, WHY MARRIAGE MATTERS: THIRTY
CONCLUSIONS FROM THE SOCIAL SCIENCES (3d ed. 2011).
232
28. THE WITHERSPOON INSTITUTE, MARRIAGE AND THE PUBLIC GOOD: TEN
PRINCIPLES (2008).
280
29. INSTITUTE FOR AMERICAN VALUES, MARRIAGE AND THE LAW: A STATEMENT
OF PRINCIPLES (2006).
318
30. INSTITUTE FOR AMERICAN VALUES (DAN CERE, PRINCIPAL INVESTIGATOR),
THE FUTURE OF FAMILY LAW: LAW AND THE MARRIAGE CRISIS IN NORTH
AMERICA (2005).
362
31. INSTITUTE FOR AMERICAN VALUES ET AL. (ELIZABETH MARQUARDT,
PRINCIPAL INVESTIGATOR), THE REVOLUTION IN PARENTHOOD: THE EMERGING
GLOBAL CLASH BETWEEN ADULT RIGHTS AND CHILDRENS NEEDS (2006).
413
32. COMMISSION ON PARENTHOODS FUTURE & INSTITUTE FOR AMERICAN
VALUES (ELIZABETH MARQUARDT, PRINCIPAL INVESTIGATOR), ONE PARENT
OR FIVE: A GLOBAL LOOK AT TODAYS NEW INTENTIONAL FAMILIES (2011).
457
33. INSTITUTE FOR AMERICAN VALUES (ELIZABETH MARQUARDT, NOVAL D.
GLENN, & KAREN CLARK, CO-INVESTIGATORS), MY DADDYS NAME IS
DONOR: A NEW STUDY OF YOUNG ADULTS CONCEIVED THROUGH SPERM
DONATION (2010).
529
iv

34. Margaret Somerville, What About the Children, in DIVORCING MARRIAGE:
UNVEILING THE DANGERS OF CANADAS NEW SOCIAL EXPERIMENT 63-78
(Daniel Cere & Douglas Farrows eds., 2004).
669
35. Margaret Somerville, Childrens human rights and unlinking child-parent
biological bonds with adoption, same-sex marriage and new reproductive
technologies, 13 J . FAM. STUD. 179-201 (2007).
687
36. Margaret Somerville, Childrens Human Rights to Natural Biological Origins
and Family Structure, 1 INTL J . J URISPRUDENCE FAM. 35 (2010).
710
37. Don Browning & Elizabeth Marquardt, What About the Children? Liberal
Cautions on Same-Sex Marriage, in THE MEANING OF MARRIAGE: FAMILY,
STATE, MARKET, AND MORALS 173-192 (Robert P. George & J ean Bethke
Elshtain, eds., 2006).
732
38. Maggie Gallagher, (How) Does Marriage Protect Child Well-Being?, in THE
MEANING OF MARRIAGE: FAMILY, STATE, MARKET, AND MORALS 197-212
(Robert P. George & J ean Bethke Elshtain, eds., 2006).
752
39. Seana Sugrue, Soft Despotism and Same-Sex Marriage, in THE MEANING OF
MARRIAGE: FAMILY, STATE, MARKET, AND MORALS 172-96 (Robert P.
George & J ean Bethke Elshtain, eds., 2006).
770
40. THE SOCIOLOGY OF GEORGE SIMMEL 128-32 (Kurt H. Wolff, trans. & ed.,
1950).
797
41. CLAUDE LVI-STRAUSS, THE VIEW FROM AFAR 39-42 (J oachim Neugroschel
& Phoebe Hoss trans. 1985)
804
42. G. ROBINA QUALE, A HISTORY OF MARRIAGE SYSTEMS 1-3 (1988).

810
43. EDWARD O. LAUMANN ET AL., THE SOCIAL ORGANIZATION OF SEXUALITY:
SEXUAL PRACTICES IN THE UNITED STATES 310-13 (1994).
815
44. CONTEMPORARY MARRIAGE: COMPARATIVE PERSPECTIVES ON A CHANGING
INSTITUTION 7-8 (Kingsley Davis, ed., 1985).
819
45. J AMES Q. WILSON, THE MARRIAGE PROBLEM 40-41, 168-170 (2002).

823
46. BRONISLAW MALINOWSKI, SEX, CULTURE, AND MYTH 10-11 (1962).

831
47. DADDY DEAREST? ACTIVE FATHERHOOD AND PUBLIC POLICY 57 (Kate
Stanley ed., 2005).
834
48. DAVID POPENOE, LIFE WITHOUT FATHER: COMPELLING NEW EVIDENCE THAT
FATHERHOOD AND MARRIAGE ARE INDISPENSABLE FOR THE GOOD OF
CHILDREN AND SOCIETY 139-63 (1996).
837
49. William J . Doherty et al., Responsible Fathering: An Overview and
Conceptual Framework, 60 J . MARRIAGE & FAM. 277-292 (1998).
852
50. KRISTIN ANDERSON MOORE ET AL., MARRIAGE FROM A CHILDS PERSPECIVE:
HOW DOES FAMILY STRUCTURE AFFECT CHILDREN, AND WHAT CAN WE DO
ABOUT IT?, a Child Trends Research Brief (2002).
868
51. Lawrence B. Finer & Mia R. Zolna, Unintended Pregnancy in the United
States: incidence and disparities, 2006, 84 CONTRACEPTION 478-85 (2011).
876

v

52. ELIZABETH WILDSMITH ET AL., CHILDBEARING OUTSIDE OF MARRIAGE:
ESTIMATES AND TRENDS IN THE UNITED STATES, a Child Trends Research
Brief (2011).
884
53. SAMUEL W. STURGEON, THE RELATIONSHIP BETWEEN FAMILY STRUCTURE
AND ADOLESCENT SEXUAL ACTIVITY, a familyfacts.org Special Report
(November 2008).
890
54. U.S. Dept. of Health and Human Servs., Administration for Children &
Families, Office of Planning, Research & Evaluation, Distribution of Abuse
and Neglect by Family Characteristics, in FOURTH NATIONAL INCIDENCE
STUDY OF CHILD ABUSE AND NEGLECT (NIS-4)
892
55. Paul R. Amato, The Impact of Family Formation Change on the Cognitive,
Social, and Emotional Well-Being of the Next Generation, 15 THE FUTURE OF
CHILDREN 75-96 (2005).
936
56. Douglas W. Allen, High school graduation rates among children of same-sex
households, 11 Rev. of Econ. Of the Household (published on-line September
26, 2013).
959
57. Mark Regnerus, How different are the adult children of parents who have
same-sex relationships? Findings from the New Family Structures Study, 41
SOCIAL SCIENCE RESEARCH 752-70 (2012).
983
58. Mark Regnerus, Parental same-sex relationships, family instability, and
subsequent life outcomes for adult children: Answering critics of the new
family structures study with additional analyses, 41 SOCIAL SCIENCE
RESEARCH 1367-77 (2012).
1002
59. Loren Marks, Same-sex parenting and childrens outcomes: A closer
examination of the American psychological associations brief on lesbian and
gay parenting, 41 SOCIAL SCIENCE RESEARCH 735-51 (2012).
1013
60. WILLIAM C. DUNCAN, MISPLACED RELIANCE ON SOCIAL SCIENCE EVIDENCE
IN THE PROPOSITION 8 CASE, Vol. 5, No. 6, an Institute for Marriage and
Public Policy Research Brief (2012).
1030
61. J OHN R. SEARLE, THE CONSTRUCTION OF SOCIAL REALITY 4-5, 27-29, 31-37,
55-57, 59-60, 76-104, 117-120, 227-28 (1995).
1035
62. J OHN R. SEARLE, MAKING THE SOCIAL WORLD: THE STRUCTURE OF HUMAN
CIVILIZATION 6-16, 84-93, 102-08, 143-44 (2010).
1089
63. Douglas Farrow, Why Fight Same-Sex Marriage?, TOUCHSTONE, J an.Feb.
2012
1121
64. Ross Douthat, Gay Parents and the Marriage Debate, THE NEW YORK TIMES,
J une 11, 2002.
1128
65. INSTITUTE FOR AMERICAN VALUES (BENJ AMIN SCAFIDI, PRINCIPAL
INVESTIGATOR), THE TAXPAYER COSTS OF DIVORCE AND UNWED
CHILDBEARING: FIRST-EVER ESTIMATES FOR THE NATION AND ALL FIFTY
STATES (2008).
1131
66. BEYOND SAME-SEX MARRIAGE: A NEW STRATEGIC VISION FOR ALL OUR
FAMILIES & RELATIONSHIPS (J uly 26, 2006).
1175
67. SHERIF GIRGIS, RYAN T. ANDERSON, AND ROBERT P. GEORGE, WHAT IS
MARRIAGE? MAN AND WOMAN: A DEFENSE 1-2, 6-12, 23-36 (2012).
1202
vi

68. DAVID BLANKENHORN, THE FUTURE OF MARRIAGE 3-4, 11-21, 55, 91-106,
120-25, 171-75, 179-201 (2007).
1227
69. [Reserved]

70. [Reserved]

PART FOUR
CANADIAN AND BRITISH LAW JOURNAL ARTICLES

71. Matthew B. OBrien, Why Liberal Neutrality Prohibits Same-Sex Marriage:
Rawls, Political Liberalism, and the Family, 1 BRIT. J . AM. L. STUDIES (Issue
2, Summer/Fall 2012, May 1, 2012).
1291
72. F.C. DeCoste, Courting Leviathan: Limited Government and Social Freedom
in Reference Re Same-Sex Marriage, 42 ALTA. L. REV. 1099 (2005).
1352
73. F.C. Decoste, The Halpern Transformation: Same-Sex Marriage, Civil
Society, and the Limits of Liberal Law, 41 ALTA. L. REV. 619 (2003).
1377
74. Monte Neil Stewart, Judicial Redefinition of Marriage, 21 CAN. J . FAM. L. 11
(2004).
1403

Dated this 11
th
day of October, 2013.

J OHN E. SWALLOW
Utah Attorney General

/s/ Philip S. Lott
Philip S. Lott
Stanford E. Purser
Assistant Utah Attorneys General
Attorneys for Defendants Gary R. Herbert
and John Swallow

CERTIFICATE OF SERVICE
I hereby certify that on the 11
th
day of October, 2013, I electronically filed the foregoing
with the Clerk of Court using the CM/ECF system which sent notification of such filing to the
following:
Peggy A. Tomsic tomsic@mgplaw.com
J ames E. Magleby magleby@mgplaw.com
J ennifer Fraser Parrish parrish@mgplaw.com
MAGLEBY & GREENWOOD, P.C.
170 South Main Street, Suite 850
Salt Lake City, UT 84101-3605

vii

Ralph Chamness rchamness@slco.org
Darcy M. Goddard dgoddard@slco.org
Salt Lake County District Attorneys
2001 South State, S3500
Salt Lake City, Utah 84190-1210

/s/ Philip S. Lott


TAB 18


TAB 19


TAB 20

In Summary, Amendment 3:
./ IDn def"me ntarriage in Utah as exclusively the union of
a man and a woman and prevent the courts or the legisla-
ture from changing that defmition.
./ Will prevent the the creation of counterfeit marriage
relationships, such as "civil unions" or "domestic partner-
ships", by either the courts or the legislature, giving them
the same or substantially the same status as marriage.
./ Will stop the recognition of counterfeit marriage
arrangements, created in other states, from being
recognized as a legal marriage in Utah.
Why Amendment 3 is Necessary:
In the past few years, activists have been trying to radically redefine
marriage in the United States - by working toward the legalizing of
same-sex unions. A Massachusetts court has already forced legal-
ized same-sex marriage in that state, andjudges in New York,
Oregon and Washington are challenging the marriage laws in their
states. We can be sure other lawsuits will be filed in the near future.
These activists will undoubtedly soon be challenging Utah's
marriage laws, and demanding that marriages performed in other
states should be recognized as legal in Utah. Adopting Amendment
3 to our constitution is the most emphatic and legally binding way
we can protect marriage in Utah.
Is Amendment 3 Constitutional?
The Utah Constitution determines what is constitutional for this state,
so when Amendment 3 becomes part of the constitution, no one can
argue that the definition of marriage violates the Utal1 Constitution.
The U.S. Supreme Court has long said that marriage is a crucial
social institution that deserves special legal protection, and it has
upheld many marriage protection and preference measures over the
years. I have yet to hear a single credible legal argument for the
claim that Amendment 3 would be w1constitutional. TI1ose asser-
tions are simply political rhetoric, not based on sound legal analysis
(Lynn D. Wardle, Professor of Law. Family Law Expert- in cooperation
with Richard Q Wilkins, Professor of Constitutional Law, Brigham Young
University and William Duncan. Fellow, Sutherland Institute).
Specifically, Amendment 3:
./ Will not deny any existing rights to anyone
./ Will not prevent the legislature from offering benefits
to any Utahns, who need them as such as health
insurance.or giving special rights to a grandmother caring
for her grandchildren. The only restriction is that these
benefits could not be provided based solely on sexual
behavior .
./ Will not interfere with any private arrangements
including employment contracts, granting benefits to anyone
the employer chooses, etc.
./ Will not prevent anyone from appointing another person
as a decision maker when they experience a medical emer-
gency.
./ Will not prevent anyone from leaving property to
whomever they desire.
./ Will not prevent anyone from living with whoever they
like.
./ Will not stop anyone from petitioning the legislature for
benefits not dependent on marital status.
When Amendment 3 Passes,
No One Will Lose Any Legal Rights
Amendment 3 is narrowly and carefully drafted. It will only prevent
the legalization of same-sex marriage or the creation of any
counterfeit marriage arrangements, such as civil unions, in Utal1.
It will also prevent the recognition of any same-sex marriages or
counterfeit marriage arrangements performed in another state.
Because same-sex marriage and other "counterfeit" marriage
arrangements arc not legal in Utah at the present time, no one will
lose any legal rights of any kind when Amendment 3 is adopted.
See www.YesForMarriage.orgfor a detailed
discussion of the legal impacts of Amendment 3.
000157
[MOnte Stewart- L ~ n n Wardle's Statement on Amendment Three August 19 2004.WQd
Would Amendment 3, the Utah Marriage Amendment, Reallv Do Those Horrible
Things?
By Lynn D. Wardle, Professor of Law
August 19, 2004
There has much talk about the horrible things that proposed Amendment 3, the proposed
Marriage Amendment to the Utah Constitution, would do. But if one looks at the language of the
amendment, it is apparent that the "parade of horribles" is just political "hype."
What Amendment 3 says and does
Amendment 3 contains two short, simple sentences:
"(1) Marriage consists only of the legal union between a man and a woman.
"(2) No other domestic union, however denominated, may be recognized as a marriage or
given the same or substantially equivalent legal effect."
The first sentence of amendment 3 prohibits same-sex marriage from being formed in
Utah, and also would bar same-sex marriages performed in other places, like Massachusetts or
Canada, from being recognized as valid in Utah.
The second sentence prohibits courts or other public officials from circumventing the first
sentence by the ruse of creating same-sex marriage and calling it something else, like "civil
unions" or "domestic partnerships," with legal benefits substantially similar to marriage.
The Need for Amendment 3
Governor Mitt Romney has eloquently explained the need for a constitutional amendment
to protect marriage. Last October, the Massachusetts Supreme Judicial Court interpreted the
Massachusetts Constitution to require same-sex marriage. If Massachusetts had passed an
amendment to the state constitution like Amendment 3, the court could not have done that. Now
the Massachusetts legislature (which delayed passing such an amendment earlier) has proposed
an amendment, but the cumbersome process of amending the constitution in Massachusetts will
take at least three years. Governor Romney published a plea in the Wall Street Journal (February
5, 2004) encouraging all states to consider state constitutional amendments (like Amendment 3)
to protect marriage.
Sentence 1 of Amendment 3 would not be sufficient alone. In California, when the
people overwhelming passed Proposition 22 prohibiting same-sex "marriage" (like sentence 1 of
Amendment 3) gay and lesbian lobbyists persuaded the legislature to pass a law giving all of the
rights and benefits of marriage to same-sex couples who registered as "domestic partners." Thus,
they brushed aside Prop 22 by creating same-sex marriage but calling it something else.
Judges in several other states (such as Vermont and Oregon) have interpreted state
constitutions to require the creation of either same-sex marriage or same-sex civil unions with
legal benefits substantially equivalent to marriage. Sentence 2 of Amendment 3 is necessary to
prevent creating imitative alternative unions, whether called same-sex marriage or something
else, that have "the same or substantially equivalent legal effect" to marriage.
Amendment 3 Confirms Utah Law, Rather Than Changes It
Nearly a decade ago, the Utah legislature passed a law barring same-sex marriage.
Amendment 3 would make that legislative law a part of the constitutional law of Utah. It would
Page 1
000158
Monte Stewart- LY-nn Wardle's Statement on Amendment Three Au ust 19 2 0 0 4 . w ~ d
Jiving together "as if' married. Moreover, the CAA provides protection for individuals (whether
Jiving in couples or not), not benefits for couples, and at least three, and arguably 5 of the 6
categories of persons covered by the CAA are or include non-spouses, so the CAA could hardly
be categorized as extending "the same or substantially equivalent legal effect" of marriage! So
Amendment 3 does not bar protection from domestic violence for gays and lesbians from their
violent present or former gay or lesbian cohabitants. The claim by Don't Amend is not even
plausible; it is simply a misrepresentation based on a deliberately manipulated quoting of part the
Cohabitant Abuse Act, while ignoring multiple other provisions. It is blatantly erroneous.
Don't Amend also claims that Amendment 3 would bar private companies from
extending specific benefits like insurance and pensions to gay and lesbian partners or employees.
But Don't Amend does not explain how or why that is so; they just make the wild accusation.
Amendment 3 says nothing about private benefits whatever. It prohibits creating a same-sex
marriage or similar "domestic union" which private employers do not claim to do. Offering
private employment benefits to nonmarital couples could not be said to amount to creating a
"domestic union" providing "the same or substantially equivalent" benefits that accompany
marriage.
Don't Amend further asserts that Amendment 3 would prevent the legislature from
"grant[ing] limited rights and protections to gay and lesbian couples and their families ... "
However, Amendment 3 specifically uses the phrase "the same or substantially equivalent legal
effect." Don't Amend does even try to explain how "grant[ing] limited rights and protections"
would violate a provision that only bars giving "the same or substantially equivalent legal effect"
as marriage. By definition, "limited rights and protections" are not "the same or substantially
equivalent" rights and protections as marriage.
Don't Amend claims that private contracts, wills and powers of attorney benefiting gay or
lesbian partners would be invalidated. However, they also admit that the very same legislature
that passed and proposed Amendment 3 passed legislation, S.B. 24 (now U.C.A. 30-1-4.1 ), that
included a provision providing that the new law would not "impair contract or other rights that
are enforceable independently of this section." That certainly suggests the intent of the drafters
of Amendment 3 - because it was the same legislature, the same representatives and senators that
passed both. Of course, under existing law, some private contracts, wills, etc., can be invalid (for
example, homosexual prostitution contracts or cohabitation agreements based on illicit sexual
consideration in violation of public policy). That is already the law. Amendment 3 confirms
those principles and gives them constitutional effect.
Don't Amend may be correct about one claim - that if a gay or lesbian couple break up
and one sues the other for property division or "palimony" or parenting rights, Amendment 3
could prevent a court "from grant granting an equitable division of a same sex couple's assets," or
awarding custody or visitation to a former lesbian partner of a child's mother, because "doing so
would be giving their relationship a marriage-like status." Amendment 3 is intended to prevent
treating same-sex unions as the same or substantially equivalent to marriage. Since custody,
alimony, and property division are basic, substantial incidents of marriage, that arise not by
private agreement but from the public status marriage, to extend those core public benefits to
same-sex couples in at least some cases would be tantamount to treating them as marriages and
would be barred. Again, that does not change the law but extends and protects existing
principles and protects them against distortion.
3
Page 3
000160
THE TRUE LEGAL EFFECT OF AMENDMENT THREE:
WHY THE CRITICS ARE WRONG
An Analysis Prepared by Yes! For Marriage
www .yesformarrige.org
Executive Summary
The "Don't Amend Alliance," the three candidates for Utah Attorney General, several
newspapers around the state and others are opposing Amendment 3, the proposed
constitutional amendment on the ballot November 2nd that will protect marriage, because
they claim would have a number of negative impacts, including reducing some rights and
protections Utahns currently enjoy. However, as this legal analysis clearly they are
wrong on all the points and concerns they have raised.
Amendment 3 states:
Marriage consists only of the legal union between a man and a woman. No
other domestic union, however denominated, may be recognized as a
marriage or given the same or substantially equivalent legal effect.
This amendment contains a single concept in two parts. The first sentence
explains what legal marriage is and the second part describes what it is not.
Contrary to the claims of those opposed to it, Amendment Three is actually a simple and
straightforward response to a real and growing problem: the efforts around the country to
redefine marriage through court decrees and to force states like Utah to recognize these
new definitions of marriage or civil unions that are being adopted in other states.
Yes! For Marriage believes that the voters must have the facts about Amendment Three
when they decide how to vote in November. The facts prove conclusively that
Amendment Three will not affect arrangements made by private individuals and
organizations. The facts prove conclusively that Amendment Three will not invalidate
existing rights. The facts prove conclusively that Amendment Three will not prevent the
extension of benefits to individuals based on any criteria or relationship so long as it is
not a legal status meant to approximate marriage.
This analysis addresses each of the arguments against Amendment Three in tum.
000162
THE TRUE LEGAL EFFECT OF AMENDMENT THREE:
WHY THE CRITICS ARE WRONG
YES! FOR MARRIAGE
WWW.YESFORMARRIAGE.ORG
Amendment Three, a proposed amendment to the Utah Constitution provides:
Marriage consists only of the legal union between a man and a woman. No
other domestic union, however denominated, may be recognized as a
marriage or given the same or substantially equivalent legal effect.
The amendment contains a single concept in two parts. The first sentence explains
what legal marriage is and the second describes what it is not.
Contrary to the claims of the "Don't Amend Alliance," attorney general candidates and
others who oppose the amendment, Amendment Three is actually a simple and
straightforward response to a real-world legal problem-the effort to gain a redefinition
of marriage through court decrees and to enforce the new definition in other states.
Amendment Three will not affect arrangements made by private individuals and
organizations. It will not invalidate existing rights or prevent extension of benefits to
individuals based on criteria other than a legal status meant to approximate marriage.
This paper will address the arguments against Amendment Three in tum.
Amendment Three is Necessary
A series of recent court decisions in other states demonstrate the necessity of Amendment
Three. Until November 2003, the question whether one state would have to recognize a
same-sex marriage contracted in another state was largely academic because no state
issued marriage licenses to same-sex couples.
1
As a result of a decision of the
Massachusetts Supreme Judicial Court, however, Massachusetts began issuing marriage
licenses to same-sex couples in May 2004.
2
Accordingly, a same-sex couple validly
married in Massachusetts could move to another state and seek to have their marriage
recognized by another state.
Some have asserted that the amendment is unnecessary since Utah already has a statute
preventing the recognition of same-sex marriages
3
and approximations ofmarriage.
4
This
argument is undercut not only by the Massachusetts decision but by a more recent
decision by a trial court in Washington. In that decision, the court held that a marriage
1
See, Note, Litigating the Defense of Marriage Act: The Next Battleground for Same-Sex Marriage 117
HARVARD LAW REVIEW 2684, 2687-2688 (2004).
2
See Goodridge v. Department of Public Health, 798 N.E.2d 941 (2003).
3
Utah Code Annotated 30-1-2; 30-1-4.
4
2004 Utah S.B. 24.
1
000163
definition similar to Utah's was unconstitutional under the Washington Constitution.
5
Thus, the mere existence of a statute will not make Utah's marriage policy immune to
challenge.
Interestingly, the Washington decision also rebuts another argument-that Utah courts
would not make a decision similar to Massachusetts. In Washington, the ruling directly
contradicted an earlier decision of the Washington Court of Appeals.
6
Thus, predictions
about the "future course" ofUtah decisions are questionable. Amendment Three will
provide long-term protection to Utah's policy of recognizing marriage as the union of a
man and a woman.
The Second Sentence of Amendment Three is Necessary
Some critics have claimed that the second sentence of Amendment Three is unnecessary.
The sentence, however, is needed to insure that Utah law preserves the unique institution
of marriage.
In 1999, the Vermont Supreme Court ordered the state legislature to create a new status
for same-sex couples which provided all of the benefits of marriage under a different
name.
7
In response, the legislature created a new legal status called a "civil union." A
"civil union" was defined as "two eligible persons [who] have established a relationship
pursuant to this chapter, and mal receive the benefits and protections and be subject to
the responsibilities of spouses." This "civil union" is marriage in everything but name.
Since the Vermont law was enacted there have been a handful of cases in which plaintiffs
sought to have their civil unions recognized in other states. Some states have rejected this
claim,
9
but others have ruled that the state is required to recognize the civil union.
10
Amendment Three, therefore, is necessary to protect Utah's policy of not recognizing
alternative statuses meant to be treated as the equivalent of marriage.
In 2000, the people of California enacted Proposition 22, a ballot initiative which defined
marriage as the union of a man and a woman.
11
In response, the California Legislature
recently created a new status of domestic partners defined as "two adults who have
chosen to share one another's lives in an intimate and committed relationship of mutual
caring" but must involve persons of the same sex or persons over 62.
12
Thus, the effort to
define marriage in California law was severely undercut by the creation of an alternative
5
Andersen v. King County, 2004 WL 1738447 (Washington Superior Court 2004).
6
Singer v. Hara, 11 Wn.App. 247,522 P.2d 1187 (1974).
7
Baker v. Vermont, 744 A.2d 864 (Vt. 1999).
8
15 Vt. Stat. Ann. 1201.
9
Burns v. Burns, 560 S.E.2d 47 (Ga. App. 2002); Rosengarten v. Downes, 802 A.2d 170, 173 (Conn. App.
2002).
10
Langan v. St. Vincent's Hospital of New York, 765 N.Y.S.2d 411 (N.Y. Nassau Cty. Ct. 2003); Salucco v.
Alldredge, 2004 WL 864459 (Mass. Super. 2004).
11
Cal. Fam. Code 308.5.
12
Cal. Fam. Code 297.
2
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status approximating marriage. Amendment Three would prevent his from happening in
Utah.
Amendment Three is Not Unconstitutional
Opponents of Amendment Three have made much of a recent court decision that they
believe casts the constitutionality of Amendment Three in doubt.
13
The case involves a
challenge to Article I, Section 29 of the Nebraska Constitution which provides: "Only
marriage between a man and a woman shall be valid or recognized in Nebraska. The
uniting of two persons of the same sex in a civil union, domestic partnership, or other
similar same-sex relationship shall not be valid or recognized in Nebraska."
14
The
amendment was approved by about 70% ofthe voters in the 2000 election.
15
Opponents
have characterized Amendment Three as analogous to the Nebraska Amendment and
charged that these two amendments are the only of their kind that address both marriage
and quasi-marital statuses. In fact, the proposed federal marriage amendment
16
and
proposed amendments in four other states include language that addresses marriage
equivalents.
17
The plaintiffs in the challenge to the Nebraska law, represented by the ACLU, make the
novel claim that this state constitutional amendment violates the federal constitution
because it deprives the plaintiffs (groups that lobby for gay rights legislation) of access to
the political process.
18
The state's position was that plaintiffs are free to amend the
constitution as the group of citizens who proposed Section 29 did or to get legislation
enacted that does not violate section 29.
1
!1 The state filed a motion to dismiss the case
based largely on standing grounds, arguing that no one has been affected by the law and
that the plaintiffs' lawsuit is premature.
20
In November 2003, however Judge Joseph
Bataillon of the Nebraska federal district court denied the motion to dismiss.
21
This does
not mean the claims are valid, only that the judge believes more information is needed to
make that decision. The court also focused on the language in the Nebraska amendment
about "persons of the same sex."
22
This language is not included in Utah's proposal.
The mere possibility oflitigation over an amendment is not a valid reason to reject the
law. Every provision of state law, whether statutory or constitutional, is subject to
13
Citizens for Equal Protection, Inc. v. Bruning, 290 F.Supp.2d 1004 (D. Neb. 2003).
14
NEB. CONST., Art. I, sec. 29.
15
See Tom Shaw, Lawsuit Over 416 Readied OMAHA WORLD-HERALD lB (Nov. 19, 2000).
16
U.S. Senate Joint Resolution 60 (2004).
17
2004 Ky. S.B. 245 (prohibits recognition of a "legal status identical or substantially similar" to
marriage); 2003 Wis. A.J.R. 66 (same); 2004 La. H.B. 61 ("A legal status identical or substantially similar
to that of marriage for unmarried individuals shall not be valid or recognized."); 2004 Arkansas Proposed
Const. Amend. No. 3 ("Legal status for unmarried persons which is identical or substantially similar to
marital status shall not be valid or recognized in Arkansas.").
18
Citizens for Equal Protection, Inc. v. Bruning, 290 F.Supp.2d 1004 (D. Neb. 2003).
19
Id. at 1007.
20 ld.
21
ld. at 1011.
22
Id. at 1009.
3
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challenge for serious or frivolous reasons. Thus, if the threat of litigation were an
appropriate reason not to enact a law, little or no law would be promulgated.
The fact that Utah's amendment is significantly different from Nebraska's, that the
litigation over Nebraska's amendment raises extremely novel legal claims, and that it is at
a very early stage at the lowest court level, suggests that the Nebraska litigation does not
provide sufficient reason to oppose Amendment Three.
Other precedent suggests that a federal challenge to Utah's marriage amendment would
be unsuccessful. For instance, a recent decision of the U.S. Court of Appeals for the
Eleventh Circuit held that a Florida law which prohibits homosexual persons from
adopting does not violate the federal constitution.
23
The Florida law is clearly more
restrictive than the narrow provisions of Amendment Three. In addition, every court to
examine federal claims for same-sex marriage has rejected those claims.
24
A recent
California Supreme Court decision rejected the mayor of San Francisco's claim that the
state marriage law was clearly unconstitutional.
25
Amendment Three Will Not Invalidate "Common Law Marriages"
Contrary to some news reports, common law marriage is not a court created status in
Utah.
26
Instead in Utah, any common law marriage is created by statute.
27
In addition,
contrary to popular belief, a common law marriage is substantively different from just
living together. To have a common law marriage a man and woman must (1) live
together, (2) "assume marital rights, duties, and obligations," and (3) "hold themselves
out as and have acquired a uniform and general reputation as husband and wife. "
28
Obviously, with the ease of obtaining a marriage license, this situation is not common.
Since Utah's statute recognizing common law marriage specifically requires parties to
hold themselves out as "husband and wife" and only applies to a couple consisting of a
man and a woman, it does not contradict Amendment Three, which contains the same
definition of marriage as a "union between a man and a woman." Amendment Three does
not say anything about the distinction between licensed and common law marriage and
thus cannot be read to abolish common law marriage or any of its rights or protections.
Only if the amendment had used language such as "Marriage consists only of a licensed
union between a man and a woman" could it be read to apply to common law marriages.
23
Lofton v. Secretary of Dept. of Child & Family Services, 358 F.3d 804 (11th Cir. 2004), rehearing en bane
denied 2004 WL 1627022 (11th Cir. 2004).
24
See Baker v. Nelson, 191 N.W.2d 185, 186-87 (Minn. 1972), appeal dismissed for want of substantial
federal question, 409 U.S. 810 (1973); Jones v. Hallahan, 501 S.W.2d 588, 589-90 (Ky. 1973); Singer v.
Hara, 522 P.2d 1187, 1195 (Wash. Ct. App. 1974); Adams v. Howerton, 673 F.2d 1036, 1043 (9th Cir.
1982) cert denied 458 U.S. 1111; Dean v. District of Columbia, 653 A.2d 307, 355 (D.C. 1995); Standhardt
v.Supeior Court, 77 P.3d 451 (Ariz. Ct. App. 2003).
25
Lockyer v. City and County of San Francisco, 2004 WL 1794627, *25 (Cal. 2004).
26
See Rebecca Walsh, Vote Could Void U. 's Policy on Partner Benefits SALT LAKE TRIBUNE, Aug. 12,
2004, Bl.
27
Utah Code Annotated 30-1-4.5.
28 Id.
4
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Instead it uses the term "legal union" and since common-law marriages are legal in Utah
and involve a man and a woman, they are not affected by Amendment 3.
Amendment Three Will Not Deny Any Protection of the Cohabitant Abuse Act
Also without basis are concerns that Amendment Three might affect Utah's Cohabitant
Abuse Act.
29
The law includes four independent factors by which a person can be
identified as a "cohabitant" for purposes of qualifying for a protective order in the event
of abuse. The final factor is that the individual "resides or has resided in the same
residence as the other party." A same-sex couple living together is covered by this
portion of the definition regardless of whether they are given any legal status as
"spouses." In addition, the act provides in subsection (2)(b) that a "cohabitant" includes
any person "living as if a spouse of the other party." The "as if' language makes clear
that, even if a cohabitant is not a spouse, he or she is a person covered by the act. This
does not give that person any legal recognition that would be prohibited by Amendment
Three; it merely identifies a covered cohabitant. A cohabitant is, by definition, not
married so Amendment Three would not affect this law.
Amendment Three Will Not Impact Health Insurance and Other Benefits
Amendment Three will have no effect on private employers who choose to offer benefits
to same- or opposite-sex partners of their employees. Not one private employer or
organization would be affected in any way by Amendment Three. The language of the
amendment is clear. It provides that a legal status ("domestic union") cannot be
recognized by the State of Utah "as a marriage" or "given the same or substantially
equivalent legal effect." Since private entities have never been able to define marriage for
legal purposes, they cannot give "legal effect" to a relationship "as a marriage."
Private individuals and organizations can give benefits to married couples. Private
individuals and organizations are also free (both now and after the passage of
Amendment Three) to give any other benefits to other individuals or relationships as they
see fit. To return to the example ofNebraska, which opponents argue is analogous to
Amendment Three, private businesses in Nebraska are still offering benefits to unmarried
partners of their employees three years after its marriage amendment went into effect.
30
In fact, a Qwest spokesman reported that their company did not believe their policy
would be affected by Amendment Three.
Opponents have specifically complained that the University of Utah's policy of providing
insurance coverage to unmarried partners of employees would be affected by the
amendment. This ignores the reality that the University's employment policy also offers
coverage for children of employees, so insurance coverage is obviously not contingent on
marital status. Thus Amendment Three, which only affects marital status or its
equivalent, has no effect on employment policies such as the University ofUtah's which
29
Utah Code Annotated 30-6-1(2)(e).
30
See Rebecca Walsh, Vote Could Void U. 's Policy on Partner Benefits SALT LAKE TRIBUNE, Aug. 12,
2004, Bl.
5
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provide benefits on bases other than marital status or an equivalent status. The relevant
section of Amendment Three for this claim is the phrase "equivalent legal effect." It
cannot be plausibly argued that extending one or two benefits to unmarried couples treats
those couples as legally equivalent to married couples. This same analysis would apply to
a local city's decision to offer some minor benefit like health insurance coverage to
someone designated by a public employee even if the employee is not married to that
person.
Amendment Three Will Not Adversely Impact Future Legislative Extension of
Benefits
Amendment Three will have an effect on future legislatures, but not the one that the
"Don't Amend Alliance" claims. Amendment Three would prevent the legislature from
creating a "substitute" for marriage. But, the amendment would have no effect on a
legislative decision to extend identified benefits to unmarried persons. For example,
while the legislature could not establish a "civil union" that (like Vermont's statute)
provides that where the word 'spouse" appears in the law, "partner in a civil union" or
similar terminology needs to be added, the legislature could provide that any person can
appoint any other person to make medical decisions on their behalf.
Amendment Three Has No Effect on Wills, Trusts and Other Legal Instruments
Amendment Three merely prevents the creation of a new status for unmarried couples. It
does not have any effect on individual choices regarding whom to name as a beneficiary
in a will or a similar legal document. Those decisions have never been affected by the
definition of marriage or the lack of an alternative status. Now (and after the amendment
is passed), a person can leave property to anyone that person wishes whether or not he or
she is married to that person. This understanding of the amendment is strengthened by the
fact that Utah Code Annotated 30-1-4.1, which was enacted by the same legislature that
approved Amendment Three, said that Utah's definition of marriage and prohibition of
quasi-marital statuses will not "impair[] any contract or other rights, benefits or duties
that are enforceable independently of this section."
Amendment Three Only Limits a Court's Ability to Redefine Marriage
Utah courts would be prevented by Amendment Three from creating a new status for
unmarried couples or ordering the legislature to do so (as the Vermont Supreme Court did
in 1999).
31
Otherwise, the powers currently provided to courts would be completely
unaffected by the amendment.
Amendment Three is a simple and narrow response to threats to marriage in Utah or
some other state. It ensures that our state constitution cannot be used as a lever to
redefine marriage against the will of the people of the State.
31
Baker v. Vermont, 744 A.2d 864 (Vt. 1999).
6
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Review by the Constitutional Revision Commission is Not Mandatory
Utah's Constitutional Revision Commission has authority to review current and proposed
constitutional amendments but is not required to do so.
32
Amendment proponents may
submit their text to the Commission but may choose not to for reasons such as time
constraints. In fact, the Commission was not established until1977, so the vast majority
of the Utah Constitution was not reviewed by the Commission before it was promulgated
and no one argues that it is invalid for that reason. In fact, six members of the
Commission are also members of the state legislature
33
and were thus able to vote on the
amendment before it was sent to the people for ratification. The legislative vote in favor
ofthe amendment was 58-14 in the House and 20-7 in the Senate, both overwhelming
margms.
Finally, if a court were to make the unlikely decision in the future that Amendment Three
raises federal constitutional issues, the Commission could recommend changes to the
amendment to resolve those issues which could then be approved in general election
without the need to begin the legislative amendment process over again.
34
Conclusion
Utah's proposed Amendment Three is a necessary response to significant current threats
to marriage in the United States. It provides constitutional protection to marriage and
prevents attempts to circumvent the marriage law by creating a new status meant to have
the same effect. There is no reason to believe that Amendment Three will violate the
federal constitution. Contrary to the claims of the amendment's opponents it will have no
effect on individual benefits, private decisions, or employment benefits and will not
constrain the legislature from extending benefits like insurance coverage or hospital
visitation on a basis other than marital status. The amendment would not unduly remove
power from state courts (except to redefine marriage or create an alternative).
The only reasons to oppose Amendment Three are (1) a desire to redefine marriage to
include same-sex couples or (2) a desire to create an alternative legal status meant to have
the same effect as marriage such as civil unions. Those who share neither of these
desires, but rather desire to preserve the definition of marriage properly can and will give
effect to their desire by voting in favor of Amendment Three.
32
Utah Code Annotated 63-54-3.
33
34
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Utahns has focused on Part II of the proposed Amendment. Part II goes far beyond
simply defining marriage and threatens harm to many Utah families. In effect, the
language of Part II states that unmarried persons who have chosen to share their lives
together in a domestic setting may not be given the same rights or any similar right to
those given to married couples. A simple analysis of Part II's language makes this clear.
Webster's Dictionary defines "domestic" as ''of or relating to the household or the family"
or "devoted to home duties and pleasures." Webster's Dictionary defines "union" as
"something formed by a combining or coalition of parts or members" or "a confederation
of independent individuals (as nations or persons) for some common purpose.''
Accordingly, together the phrase "domestic union" means the combining or coming
together of individuals for a common purpose relating to the household, family or home
duties and pleasures. Nothing in the plain meaning of those words says anything about
the presence, or lack thereof, of a sexual relationship between the parties in the
domestic union. Nor has any court anywhere in the country ever determined that those
words should be limited to couples engaged in a sexual relationship.
For example, an SO-year-old heterosexual couple that has come together to share a
home, finances and expenses and to live and care for each other in their latter years, but
whose relationship is not characterized by or focused on a sexual relationship, would be
considered to be In a "domestic union" according to the plain language of Amendment 3.
Likewise, a 55-year-old Aunt living with and being cared for by her 26-year-old niece
would be considered to have formed a "domestic union" under Part II of the proposed
amendment. Furthermore, a lesbian couple who have been in a committed and loving
long-term relationship for 15 years would be considered to be in a "domestic union"
because they have come together for the common purpose of creating a household and
sharing the duties and pleasures of forming a home. The fact that this last example may
involve a sexual relationship does not make It any more or any less a "domestic union"
for purposes of Amendment 3. The plain meaning of the words Imparts no requirement
of sex whatsoever.
Amendment 3's proponents argue that the use of the term "union" in Part I of the
amendment implies the existence of a sexual relationship and that the parallel use of the
same term in Part II of the amendment also implies a reference to a sexual relationship.
As demonstrated above, the use of the word "union" in Part I does not imply a sexual
relationship. Accordingly, it follows that Part I provides no support for interpreting Part II
as requiring such a relationship.
The intent and effect of Part II of the proposed amendment is to prevent the legal
recognition of any living arrangement between two people other than that created when
a man and a woman go to the county clerk's office and receive a marriage license from
the state.
Part II applies to all potentisl actors, not just the State of Utah
It Is critical to note that the language of Part II is addressed not only to the State of
Utah. It sets forth a universal mandate that no one in Utah may recognize or give legal
recognition or any marital right or benefit to any partnership relationship other than a
formal marriage. Its broad-reaching scope addresses everyone who may be in a position
to extend any kind of rights or recognition to unmarried couples. It applies to the State
of Utah; but it also applies to private entities such as private employers who may seek to
extend marital-like benefits to partners of their unmarried employees. The scope of Part
II as drafted is so broad that It may also be deemed applicable to religious Institutions In
the state which currently bless and recognize same-sex unions.
Because opposition to Amendment 3 has focused on Part II, the damaging effect of that
Part of the Amendment will be considered first. Then this paper will turn to examining
why Part I is entirely unnecessary .
. Il of Amendment 3 is Hurtfu!!-2 Families
Let's begin by exploring how Part II of Amendment 3 limits the State of Utah as well as
private entities from extending any partnership rights and protections to unmarried
couples in nontraditional families.
.. . .. 9.f..f..l!.tY.t:f!
Basic Legal Rights and Protections to Nontraditional Families
If Amendment 3 passes, the Utah Legislature will be prohibited from extending even the
most basic partnership rights to unmarried state employees who are involved in a
domestic union. Included among such marital-like rights that will be foreclosed to such
state employees are:
1. The right to health care benefits for the unmarried partner of a state
employee;
2. The right of a state employee to take family leave for sick care and
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funeral leave for an unmarried partner;
3. The right to worker's compensation benefits for an unmarried partner
in the event of a state employee's death on the j ob; and
4. The right to pension and accidental death benefits for the unmarried
partner of a state employee.
But the limitations of Part II reach far beyond the workplace and the state's granting of
benefits to state employees. The Utah Legislature will be prohibited from extending a
host of other rights and benefits to all unmarried partners in nontraditional relationships.
Among such benefits that the Legislature will be prohibited from extending are;
1. The right to visit and to make emergency health care decisions for
one's life partner in the hospital. Equally troubling, if Amendment 3
passes, not only will the Legislature not be able to mandate by statute
that unmarried couples have hospital visitation and the ability to make
emergency health care decisions for one another; a private hospital
may interpret the Amendment as prohibiting lt from ever extending
such privileges to unmarried couples;
2. The right to make funeral decisions for one's unmarried partner, as
well as dedslons concerning organ donations;
3. The right to be heard in civil commitment proceedings for one's
unmarried partner;
4. The right to inherit from one' s unmarried partner through the Intestacy
laws in the event of death without a will;
5. The right to bring a wrongful death lawsuit for loss of care, support,
attention and counsel of one's unmarried partner;
6. Protection under the state's victim's rights laws the same as that given
spouses; or
7. Exemption from paying a state transfer tax when conveying property
to one's unmarried partner.
Other rights potentially impacted by Amendment 3 will be discussed ln more detail
below.
The Experience In Nebraska Supports the Conclusion that Amendment 3 will Hurt
Y.[JJ!J!!,rr/ed Couples and Their Families in Utah
Because Amendment 3 would prohibit the Utah Legislature from proposing or enacting
even the most limited and basic legal rights and protections for couples in a domestic
union, the amendment effectively forever prevents the Legislature from ever even
debati ng the public policy question of affording any legal rights and benefits to
non-traditional couples. This conclusion is supported by the experience of the State of
Nebraska under similar circumstances-the only real world exi!lmple in which a provision
i!lki n to Part II was inserted into a state constitution.
In 2000, Nebraska amended its constitution with a provisi on similar t o Amendment 3.
The Nebraska l anguage was interpreted by the Nebraska Attorney General as prohibiting
proposed legisl ation that would have granted the survivi ng partner i n a domesti c union
the right to make funeral arrangements and organ donation decisi ons for the deceased
partner regardl ess of the sexual orientation of the parties in the domestic union. The
Nebraska Attorney General explained i n a formal legal opinion Interpreting the Nebraska
amendment that:
[S]uch legislation would create new rights which spring from recognition of
a domestic partnership; a partnership which could comprise same sex
couples. And the rights being created are placed on the same plane as
rights which arise as a consequence of the marital relationship. This would
give legal effect to a same sex relationship, thereby validating or
recognizing it, which runs counter to Art. 1, 29.
Nebraska Attorney General Jon Bruning, Compatibility of Legislation to Vest Rights in
Domestic Partners and Neb. Const. Art. I, Section 29, March 10, 2003 at 2.
Attorney General Shurtleff and his two opponents for that position all agree that the
Nebraska Attorney General's reasoning is directly applicable to Amendment 3 In Uti!lh.
Utah Attorney General Mark Shurtleff, News Release, Attorney General Explains
Opposition to Proposed Utah Marriage Amendment, August 5, 2004 {"This
gees too far. It could forever deny to a group of citizens the right to approach its
to seek benefits and protections. That is bad law and should be rejected by
the f air-minded citizens of the state of Utah."); Attorney General Mark Shurtleff, Greg
Andrew McCullough, Joint Statement Regardi ng Proposed Amendment 3,
August 5, 2004 {"As written, Part Two of the pr oposed amendment would prohibit the
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Utah Legislature from ever extending even the most basic partnership rights to an
unmarried couple, such as rights to hospital visitation, to emergency medical
decision-making, and to inheritance."); Deborah Bulkeley, Shurtleff stands by his
criticism of Amendment 3, Deseret Morning News, Sept. 17, 2004.
Part II of Amendment 3 Could Prohibit Private Employers from Extending Basic
Legal Rights and Protections to Nontraditional Families
Amendment 3's categorical prohibition on extending marriage-like rights and benefits to
same-sex couples could directly jeopardize a private employer's ability to offer
employment benefits to the same-sex partners of their employees. As suggested above,
the language in Part II of Amendment 3 is broad and general and addressed not only to
the state. Accordingly, a court or private employer could read Part II to prohibit a private
employer from extending any of the marital like rights and benefits listed above to
unmarried employees living In domestic unions. This would affect not only private
employers currently offering such benefits to their unmarried employees; it would also
prohibit private employers not currently offering such benefits from choosing to do so in
the future. The proponents of Amendment 3 claim that Part II of the amendment will not
affect private employers because "domestic union" refers to a legal status that only the
state can define and to which only the state can "give legal effect." Given the broad
language of Part II, the state Is not the only actor affected by the proposed amendment.
Private employers are also In a position to, and in fact do, recognize and grant
partnership benefits to their unmarried employees. Accordingly, such private employers
will in all likelihood be directly affected by Amendment 3.
Amendment 3 May Affect the Equitable Powers of Courts
Amendment 3 may also impact a court's power to grant an equitable division of an
unmarried (straight or gay) couple's assets in the event of the couple's separation,
because to do so would treat that relationship like a marriage. Utah courts, when faced
with dissolution of nontraditional relationships have on occasion relied upon on their
equitable powers to divide property and assets. Amendment 3 will undermine Utah
courts' ability to exercise such powers.
3 Brings into Question Enforceaf!l111Y. .. Ii!f..f::!tgal
Documents Meant to Replicate the Legal Rights and Benefits of Marriage
Because the law does not automatically create partnership rights for unmarried couples,
such couples often rely on certain legal instruments, documents and contracts in an
attempt to replicate the rights and benefits of marriage. In essence, these couples rely
upon such legal arrangements to create their domestic union. The very existence of a
"domestic union" between such a couple springs from those legal arrangements just as
the "legal union" between a man and a woman arises from the marriage license granted
by the state.
Part II of Amendment 3 would bring into doubt the validity and enforceability of these
legal arrangements that are used to create unmarried domestic unions. Amendment 3
states categorically that Utah will not give legal effect to any domestic relationship other
than the legal union between a man and a woman. Presumably, any attempt whatsoever
to gain the same or substantially similar legal rights and benefits by a nontraditional
unmarried couple would be prohibited under Part II's categorical statement of pubic
policy. In other words, a court would be barred by Part II from enforcing the legal
documents and instruments used by nontraditional unmarried couples to replicate the
rights and benefits of traditional marriage. Passage of Amendment 3 also would increase
the likelihood of success of potential challenges to those legal documents and
arrangements that nontraditional unmarried couples use to create their "domestic
unions." The sweeping language of Part II of the Amendment hands a powerful
constitutionally-basad argument against the enforcement of such legal instruments to
family members unsympathetic and hostile to the nontraditional relationship.
It Is clear that the Utah Legislature was aware of this concern over the effect that the
"substantially equivalent legal effect" language might have on the validity of legal
instruments and arrangements. When the 2004 Legislature adopted S.B. 24 (now U.C.A.
30-14.1), it specifically included a provision stating that the new law would not
"impair contract or other rights that are enforceable Independently of this section." No
such protective language is included in Amendment 3.
.. ..
Cohabitant Abuse Act
Particularly troubling is the possibility that Part II of Amendment 3 may deny protections
to unmarried couples under the Utah Cohabitant Abuse Act ("Act"). Currently, unmarried
couples are afforded protections and have access to protective orders under that Act.
Were Amendment 3 passed, a court might feel bound to Interpret the "living as if a
spouse of the other party" or "resides or has resided In the same residence as the other
party" in that statute as falling within the broad "domestic union" language of Part II.
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The Utah Legislature could choose to redefine marriage as something other than the
legal union between a man and a woman. Given the current make-up of the Utah
Legislature, this possibility is totally implausible. Utah has one of the most conservative
legislatures in the country. It has already codified the traditional definition of marriage
and banned same-sex marriage in Utah. There Is absolutely no chance-absent a great
sea change in the ideology of the state-that the Utah Legislature will redefine marriage
in this state.
Judicial Redefinition in State Court
The Utah Supreme Court could presumably, in response to a legal challenge to the
state's marriage laws, redefine marriage. The proponents of Amendment 3 cite examples
of courts in Massachusetts and Vermont to stir fears of similar "liberal judicial activism"
here in Utah. Again, this scenario Is equally implausible. The Utah Supreme Court is one
of the most conservative In the country. Four of the five current sitting Justices on that
court were appointed by Republican Governor Mike Leavitt and confirmed by a
Republican-controlled Utah Senate within the last four years. Furthermore, in the last
twenty-seven years, there has been ample opportunity for the "radical homosexual
agenda" to attempt to redefine marriage in Utah by coaxing Utah Judges Into action. In
fact, no challenge to Utah's marriage laws has ever been filed, let alone considered by
the Utah Supreme Court. The truth of the matter is that the claim that activist judges
will redefine marriage in Utah is nothing more than a scare tactic aimed at evoking a
knee-jerk. reaction from the Utah electorate.
Judicial Redefinition in Federal Court The Full Feith and Credit Clause
Finally, supporters of Amendment 3 have claimed that a same-sex couple validly married
in another state such as Massachusetts could move to this state and attempt to have
their marriage recognized here. Under the Full Faith and Credit Clause of the United
States Constitution, a federal judge In Utah could force the state to recognize a
same-sex marriage from another state like Massachusetts. But no language in the Utah
Constitution could foreclose such action by a federal judge because under these
circumstances, that judge would be interpreting the federal, not the state, constitution.
Passing Amendment 3 would provide no protection from this scenario.
Moreover, under the public policy exception to the Full Faith and Credit Clause it is
unlikely that a federal judge In Utah would in fact force Utah to recognize a foreign
same-sex marriage. Under this exception, if a state has a strong public policy which
conflicts with the law or act of another state, it will not be forced to recognize or enforce
the law or act of the other state. Accordingly, based on Utah's long-standing and strong
public policy against the recognition of same-sex marriages, it Is Improbable that a
federal judge would forced the state to recognize such a marriage performed in another
state.
Utah's stated public policy can be found in the three statutes mentioned above that have
been on the books in Utah since 1977. In the statute passed just this year, the Utah
Legislature explicated stated: "It Is the policy of this state to recognize as marriage only
the legal union of a man and a woman as provided in this chapter." Utah Code Ann.
30-14.1. This statement of Utah public policy is more than sufficient to trigger the
protections of the public policy exception to the Full Faith and Credit Clause. Amendment
3 proponents' assertion that Utah's statement of public policy on this subject and for this
purpose must be made In the Utah Constitution is incorrect. Adding Amendment 3 to the
Utah Constitution Is simply unnecessary to application of the public policy exception.
Additional protection against "liberal activism" by federal judges is also found in the
Defense of Marriage Act, enacted by the United States Congress in 1996. That federal
law ensures that no state can be forced to recognize a same-sex marriage performed in
another state. Recently a federal district court in Washington State ruled that the
Defense of Marriage Act was constitutional. No court has ever held that the Defense of
Marriage Act is unconstitutional or unenforceable.
Finally, the Full Faith and Credit Clause has never been used to force one state to
recognize an unwanted marriage from another state. Even during that period in United
States history when states had differing views on Inter-racial marriage, no state
outlawing inter-racial marriage was forced by any court to recognize an inter-racial
marriage from another state pursuant to the Full Faith and Credit Clause.
Despite recent court decisions and legislative acts in other states, there simply is no
realistic concern that the Full Faith and Credit Clause of the U.S. Constitution might be
used by a federal judge to force Utah to recognize same-sex marriages from another
state.
Amendment 3 is not necessary to stop so-called "Counterfeit Marriages"
Proponents of Amendment 3 claim that Part II of the Amendment is necessary to
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"preserve the unique institution of marriage" and to prevent so-called "counterfeit
marriages" such as civil unions in Vermont and domestic partnerships i n California.
Again, fears that Utah will follow in the footsteps of Vermont or California are unfounded
and only intended to play on the fears of the Utah electorate.
Amendment 3's promoters presumably fear that the Utah Supreme Court will force the
Legislature to enact a l egal status similar to marriage recognizing same-sex
relationships. As previously discussed, this seems highly improbabl e given the current
composition of the Court. Just as improbable is the notion that the Utah Supreme Court
would hold that Utah must recognize a civil uni on or other "counterfeit marriage" from
another state.
Supporters of the amendment also citl! ev11nts in California to suggest that Part II of the
Amendment is necessary. In California, in 2000, voters approved a statewide proposition
that codified in California law a traditional definition of marriage. Two elections and four
years later, the California Legislature created domestic partnershi ps for same-sex
couples. Amendment 3's proponents characterize this legislative enactment as the
product of a "run-away" legislature. Instead, the legislative process worked exactly as it
should in California with the people's representatives legislating on a subject important
to the state and the people. The domestic partnership law enacted in California did not
change the definition of marriage. In California, marriage Is exclusively a union between
a man and a woman.
Again, the bottom line is the Utah Courts end the Utah Legislature are not going to
sanction the creation or recognition of so-called "counterfeit marriages," making
Amendment 3 wholly unnecessary.
Amendment 3 is Subiect to Feder21l Constityt!onl Challenge
Despite the attempts of the proponents of Amendment 3 to minimize the ongoing
litigation underway In federal court in Nebraska over a similar provision to the Nebraska
Constitution, Nebraska's experi ence simply cannot be dismissed out of hand. The
litigation over Nebraska's amendment bodes ill for Utah's proposed amendment. The
Nebraska federal district court has denied the state's motion t o dismiss the "novel"
constitutional cl aim (based in part on the 1996 Supreme Court case, Romer v. Evans,
517 U.S. 620, which incidentally Is still good law) against the Nebraska Amendment.
The ongoing l itigation in Nebraska prompted Utah Attorney General Mark Shurtleff to
contact his counterpart in Nebraska about the issue. See Deborah Bulkeley, Shurtleff
stands by his criticJsm of Amendment 3, Deseret Morning News, Sept. 17, 2004.
After comparing Utah's amendment to the Nebraska amendment and discussing the
Nebraska litigation with the Nebraska Attorney General, Shurtleff concluded that
"[Amendment 3] could forever deny to a group of citizens the right to approach its
legislature to seek benefits and protections"-preclsely one of the arguments being
pursued in the Nebraska litigation. Obviously Attorney General Shurtleff does not share
the proponents' optimism over the outcome of the litigation in Nebraska or their
characterization of the Nebraska claims as "novel."
Despite their attempt, the proponents of Amendment 3 fall to identify any material
differences between the proposed Utah amendment and the Nebraska amendment. In
fact, Nebraska's amendment is narrower than the broad-reaching language of Utah's
proposed Amendment 3 because the Nebraska amendment focused only on same-sex
domestic partnerships and civil unions and is a mere "recognition" provision that does
not go as far as limiting the "legal effect" of domestic unions in general. If a more
narrowly and carefully drawn amendment is subject to constitutional challenge, there is
no doubt that the vague and broadly drawn Amendment 3 will be subject to serious
challenge in the courts.
Amendment 3 Bypassed the Utah Constitutional Revision Commission
Since the early 1970s, proposed constitutional amendments are usually considered by
the Utah Constitutional Revision Commission ( " C R C ~ ) before being presented to the
electorate. Amendment 3 is the first serious substantive amendment in Utah history to
bypass this important body.
The CRC was created in the late 1960s to review the Utah Constitution and propose
amendments to update this important document. In the 1970s, the CRC was made
permanent and given the task of reviewing ell proposed constitutional amendments to
ensure that the prospect of amending our foundational documents was not taken lightly
or done in a haphazard way. The CRC Is made up of some of the finest legal and
constitutional experts and scholars In Utah, e.g., the Chief Justice of the Utah Supreme
Court, the deans of the Utah's two law schools, members of the House and Senate
Judiciary Committees, the Speaker of the Utah House of Representatives and other
judges.
The supporters of Amendment 3 attempt to downplay the CRC's role. Whether the
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sponsors of Amendment 3 chose to skip CRC review out of sloppiness and haste or
whether they knew that the CRC would identify the many flaws and negative impacts of
the proposed amendment's language, many of the problems associated with Amendment
3 would likely have been caught by the CRC. Governor Olene Walker, a former member
of the CRC, identified as one of her concerns about Amendment 3 that this proposed
amendment did not first go through CRC review.
Amendment 3's sponsors' assertion that "if a court were to make the unlikely decision in
the future that Amendment Three raises federal constitutional issues, the Commission
could recommend changes to the amendment to resolve those issues which could then
be approved in the general election without the need to begin the legislative amendment
process over again" is flatly wrong. Were a federal court to conclude that any part of the
amendment is unconstitutional, It Is likely the entire amendment will be struck down.
This would require beginning the amendment process over again, i.e., a proposed
amendment would require two-thirds approval in both houses of the Utah Legislature
and majority approval by the Utah electorate. Contrary to the amendment proponents'
claim, there is no quick fix to mistakes made in amending our state constitution.
Amendment 3's Supporters' Reliance on Lofton is Misplaced
On numerous occasions, the proponents of Amendment 3 cite to Lofton v. Secretary of
the Department of Children and Family Services, 358 F.3d 804 (11th Cir. 2004) for the
proposition that proposed Amendment 3 would withstand constitutional scrutiny under
the federal constitution. This reliance Is misplaced, and the proponents severely distort
what the court said in that case. Moreover, the proponents conveniently ignore a much
more important decision that could potentially impact litigation over Amendment 3, the
United State Supreme Court's 2003 decision in Lawrence v. Texas.
Lofton involved a challenge to the state of Florida's categorical ban on adoption by gay
and lesbian individuals. While the Eleventh Circuit did uphold Florida's gay adoption ban,
it noted the unique context of the prohibition and the court explicitly limited its holding
to adoption:
Because of the primacy of the welfare of the child, the state can make
classifications for adoption purposes that would be constitutionally suspect
in other arenas . Many of these preferences and requirements [of the
Florida adoption scheme], if employed outside the adoption arena, would
be unlikely to withstand constitutional scrutiny.
Lofton, 358 F.3d at 810.
Amendment 3's supporters read Lofton as a broad license to deny basic rights and legal
recognition to gay and lesbian Utahns. They conveniently ignore the limiting language of
the Lofton opinion. Also of note, Lofton has now been appealed to the United States
Supreme Court for review. Given the LawrenCI! case discussed below, many legal
scholars suggest that Lofton will be overturned on appeal.
But more importantly, Amendment 3's proponents totally ignore the U.S. Supreme
Court's decision In Lawrence v. Texas, 123 S.Ct. 2472 (2003). In Lawrence, the Court
struck down as unconstitutional a Texas statute that criminalized private consensual
sodomy between persons of the same sex. In doing so the Court noted that:
It suffices for us to acknowledge that adults may choose to enter upon
[same-sex relationships] in the confines of their homes and their own
private lives and still retain their dignity as free persons. 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.
Lawrence, 123 s.a. at 2478. Furthermore, Lawrence grounded its holding in previous
Supreme Court precedent that confirms that "our laws and tradition afford constitutional
protection to personal decisions relating to marriage, procreation, contraception, family
relationships, child rearing, and education." Id. at 2481. In effect, the Supreme Court
has stated that relationships between same-sex couples are worthy of the same dignity
and respect as that given to opposite sex couples.
The proponents of Amendment 3 contend that every single one of the dozens and dozens
of concerns that have been raised about Amendment 3 have no validity. It is simply
Implausible that the literally hundreds of lawyers, legal experts, and life-long students of
constitutional law are all wrong. The list of legal experts that oppose the amendment is
Impressive: the past two attorney's general and all three of this years candidates for
attorney general, the leadership of the Utah Bar Association's Family Law Section, law
professors, judges, and now a new group called Lawyers for Sound Constitutional
Amendments, which will have hundreds of members before the election.
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Who are we going to trust? The people who have a vested Interest in the amendment
because they drafted, sponsored and voted for It and who would have to admit that they
were wrong If they even acknowledge the possibility that the amendment is flawed and
hurtful? Or are we going to trust the majority of legal experts, those who simply are
concerned about hurting people and permanently altering our constitution with a flawed
amendment that goes too far.
About Amendment 3
Frequently Asked Questions
Talking Points about Amendment 3
Don't Amend Alliance
175 West 200 S o u t h ~ Suite 2006, Salt lake City, Utah, 84101
Office (801) 746-1314 Fax (801) 746-1319
Contact Us
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