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2 sides clash on legality of amendment

And their views diverge widely on possible impacts

The following are responses from supporters of Amendment 3 to commonly asked questions about the effects of the proposed constitutional amendment that would define marriage in Utah.

Why do we need this amendment now?

SUPPORTERS:

The state's marriage law already limits marriage to heterosexual couples, but amendment supporters say recent court decisions around the country have exposed the state to a legal challenge to traditional marriage in Utah.

The amendment would eliminate the possibility of a state court challenge and strengthen the state's case in a federal court challenge. That challenge could come from same-sex couples married in other states that sanction those unions.

Precedence shows a state does not have to recognize the official act of another state, if it goes against strong public policy. And putting the ban in Utah's constitution by the approval of a majority of Utahns indicates a strong public policy.

OPPONENTS:

Amendment 3 is not necessary. The state's marriage law, since 1977, already bars same-sex marriages and other similar relationships such as civil unions. The amendment would only prevent traditional marriage from being challenged in state court. It wouldn't prevent a challenge in federal court, where it's more likely to be challenged anyway.

Utah's judicial, and political climate, is much more conservative than Massachusetts or California, so even if Utah's marriage law is challenged in state court, it's likely to fail.

But the proposal as crafted will certainly generate a tremendous amount of litigation.

What's so bad about the second part of the amendment?

OPPONENTS:

The wording is so vague it, at the least, borders on unconstitutionality. The term "domestic union" is a new one that's never been tested in court, and it's hard to say just what existing or future legal protections could be impacted because the amendment not only prevents giving the "same" legal effect as a marriage to any other union, it also prevents giving "substantially equivalent" legal effect.

SUPPORTERS:

The second sentence of the amendment is constitutional and is needed to prevent so-called counterfeit marriages. Without this sentence, lawmakers or judges could sanction domestic partnerships, or civil unions, giving gay and lesbian couples the same or very similar legal protections as a marriage automatically provides.

Is this a civil rights issue?

SUPPORTERS:

This isn't a civil rights issue because both men and women have equal opportunity to enter into a marriage. It's possible to provide basic legal protections to nontraditional families, without dismantling marriage or changing its basic structure of a union between a man and a woman.

OPPONENTS:

This is a civil rights issue because it could prevent a class of citizens from petitioning their lawmakers for even the most basic legal protections. The amendment lacks protective language included in the state's marriage law, which passed during the same legislative session. The law specifically protects legal contracts that are available independently of the statute.

What impact, if any, will this amendment have on legal protections for unmarried couples?

OPPONENTS:

Passage of Amendment 3 would create uncertainty for nontraditional Utah families. The amendment could strip from unmarried couples basic legal protections and deny them the ability to petition their lawmakers for those protections.

The term "substantially equivalent" to a marriage could mean any individual legal protection that is similar to a protection afforded to a married couple would become threatened under this law.

That same wording would prevent lawmakers from even considering granting small bundles of protections, such as funeral and burial decisions, on the basis of any "domestic union" that's not a marriage.

Here's the effect on some specific legal protections:

Cohabitant Abuse Act: Because it's unclear what "domestic union" means, it's possible that a court could interpret that definition to include roommates, which would prevent "someone who resides or has resided in the same residence" or any other unmarried cohabitant from seeking protection under this act.

Private contracts: Unmarried couples rely on wills, powers of attorney and other private contracts to create domestic unions. Since couples are using these contracts to create substantially similar legal benefits that a marriage affords, a court would be barred from enforcing these contracts.

Domestic partner benefits: Because there is no reference to the state of Utah in the amendment, it leaves open the possibility that private companies would be barred from giving the same benefits to domestic partners as they do to spouses.

Common law marriages: Common law marriage, in effect, is a way for a domestic union to be recognized as a marriage. Because the amendment clearly states that no other union can be given the same legal effect as a marriage, this amendment would therefore invalidate that statute.

SUPPORTERS:

The amendment wouldn't impact any existing legal protections and would simply maintain the "status quo."

It also wouldn't prevent the Legislature from creating new benefits for people in relationships defined by dependence or residence. It would only prevent the recognition of relationships defined by their sexual basis.

The term "domestic union" will be interpreted to mean only relationships defined as sexually based, because of the context of the amendment.

Here's the effect on some specific legal protections:

Cohabitant Abuse Act: The provision wouldn't be impacted because the six types of cohabitants against whom a protective order may be filed include "someone who resides or has resided in the same residence." Such roommates are not substantially equivalent to a married spouse.

Private contracts: Marriages are not considered private contracts, such as wills, powers of attorney and other private contracts. The state's current marriage law, enacted this year, says it doesn't apply to "any contract or other rights, benefits or duties that are enforceable independently of this section."

Domestic partner benefits: Because the amendment only applies to state action, it won't prevent private employers from providing "domestic partner" benefits, or prevent partners from visiting each other in the hospital.

Common law marriages: The law provides that a non-solemnized marriage can be granted by the state if a man and a woman meet certain requirements, such as holding themselves out as husband and wife. The amendment wouldn't impact this type of marriage because it involves a man and a woman.

Should the amendment have been reviewed by the state's Constitutional Revision Commission?

SUPPORTERS:

Amendment sponsor Rep. LaVar Christensen, R-Draper, says the amendment was drafted with input from several legal minds and "went through the standard process." It did not go to the Constitutional Revision Commission because he and other legislators saw this as an urgent issue, and the commission would have delayed the amendment from going before lawmakers until a later session. Not all constitutional amendments are reviewed by the commission.

OPPONENTS:

Because a constitutional amendment has much more weight than a law, it needs to be closely scrutinized. Most amendments are scrutinized by the commission to make sure they are sound legislation. Opponents believe that the amendment is sloppily drafted, and was not submitted to the commission because supporters feared the flaws and potential negative impacts would be addressed by the commission.