The ruling of a judge in Hawaii against LDS Church intervention in a same-sex marriage case illustrates the importance of a bill recently passed by the Utah Legislature. Gay and lesbian couples are attacking Hawaii's marriage law, claiming it violates equal protection to deny same-sex couples the right to marry.
The Hawaii court recently denied the motion by The Church of Jesus Christ of Latter-day Saints to intervene in helping to defend Hawaii's marriage law.Earlier this month, the Utah Legislature amended the marriage recognition law to clarify that Utah does not recognize marriages done in other states or countries if those marriages involve children under 14, incest, polygamy or same-sex couples.
If the Utah Legislature had not enacted this amendment, Utah might have become the first state obliged to recognize same-sex marriage. That result might have been mandated by an unintentional loophole caused by a drafting oversight many years ago.
The lawsuit in which the judge ruled against the LDS Church motion to intervene relates to the situation that made it critically important for the Utah Legislature to close this loophole. In 1993, the Hawaii Supreme Court, in Baehr vs. Lewin, ruled that Hawaii's marriage-license law allowing only heterosexual couples to marry, but not homosexual couples, constitutes sex discrimination under the state constitution (equal protection provision and Equal Rights Amendment). The court held that Hawaii's law allowing only heterosexual couples to get marriage licenses could be upheld only if the state proves that denial of same-sex marriage is necessary to effectuate a compelling state interest.
That is a very difficult standard for the state to meet.
The Hawaii Supreme Court sent the case back for trial in Honolulu. The trial is scheduled for September 1995. Many people and many churches (not just the LDS Church) are deeply concerned that the Hawaii case may be heading for a radical ruling that would legalize same-sex marriage in Hawaii. The denial of the LDS Church's motion to participate as a party in helping to defend Hawaii's marriage law does little to alleviate those concerns.
If the Hawaii court legalizes same-sex marriage, many homosexual couples immediately will fly to Hawaii to be united in marriage. It is likely that some same-sex couples from Utah would be among them.
Thus, by this fall, Utah courts could be faced with cases in which homosexual couples with valid Hawaiian same-sex marriages demand that the Utah courts recognize their marriage. What would a Utah court do?
Before the Utah Legislature amended it, the law governing marriage recognition provided: "Marriages solemnized in any other country, state or territory, if valid where solemnized, are valid here."
Without the law passed during the recent legislative session, it is likely many homosexual couples, including undoubtedly some from Utah, would be married in Hawaii before Utah could enact a law adding a public policy exception to our marriage recognition statute. Thus, Utah could be one of a few states that, because of the loophole in its marriage recognition statute, would have to recognize same-sex marriages.
Legislation closing that loophole was needed now for four reasons. First, it made Utah marriage policy governing out-of-state marriages harmonize with the rule governing in-state marriages. Utah does not allow same-sex marriage. Yet the loophole would have let wealthy Utahns fly to places with exotic marriage laws, enter marriages prohibited by Utah law, and return to Utah with a valid marriage.
Second, it brought Utah's marriage recognition law into line with the rule followed by most American states (and most foreign countries). The long-established general rule regarding recognition of marriages contracted out of the jurisdiction has been that a marriage that is valid where it is performed will be deemed valid in other jurisdictions unless the out-of-state marriage violates a public policy of the forum.
Third, it was better to resolve the questions before the cases arose. To try to close the loophole after-the-fact, after some couples had entered into same-sex marriages or other prohibited marriages abroad, would only complicate the matter.
Fourth, same-sex marriage is not the only issue. In some nations of the world children may be married, in other nations polygamy (or concubinage) is legal; in others incestuous marriages are allowed. The potential problems could be very grave.
The people of Utah have the right to enact their own marriage laws conforming to their values.