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In the glare of an election battle, politicians will say just about anything to get themselves - or their pet causes - approved by voters.
Words like "Read my lips" become a slogan to assuage voters' fears. In the case of Utah's marriage amendment, "It's simple. It's just right," was the motto of Amendment 3 supporters. And more than 60 percent of Utah voters agreed, changing the state constitution to block gay marriage.
But now that the constitution has been amended, Salt Lake City Mayor Rocky Anderson has tested that slogan with an executive order granting medical benefits to unmarried city employees - gay or otherwise - in committed relationships.
Suddenly the debate about the amendment has changed. Supporters who calmly told voters the amendment would not block government or business from providing limited benefits to gays and lesbians now say the mayor's plan is unconstitutional. And amendment critics who warned of such legal consequences now argue the law does not do what they had predicted.
Salt Lake City Rep. Jackie Biskupski, who warned Utahns about Amendment 3 in a voter information pamphlet, acknowledges arguments on both sides have changed.
"Now we flip because we're trying to test the law. We all need to know what the amendment really did," Biskupski said. "Until it's interpreted, nobody knows for sure. You have this weird place to be in. I don't think anybody believes the constitutional amendment language is clear."
Two groups have sued over Anderson's executive order. Attorneys for Public Employees Health Program, the government insurer that would have to provide the medical benefits to city employees and their partners, has asked the courts to clarify the law. And an Arizona Christian group has sued to declare the mayor's policy illegal.
Whatever the judges decide, the mayor's policy has forced both sides to shift strategies.
At this time last year, Amendment 3 supporters were doing their best to counter claims that the amendment language would hurt Utah's nontraditional families. The legislative sponsor of the amendment, Draper Rep. LaVar Christensen, was the initial spokesman for supporters but was replaced by Monte Stewart, a soft-spoken attorney with a kinder, gentler approach.
Both Stewart and Christensen argued the proposed law would not block contract-based rights for gays and lesbians, such as hospital visitation, inheritance and end-of-life decision-making. Stewart went further, pledging that public employers, like the University of Utah, would not be stopped from providing medical benefits to unmarried partners.
"Amendment 3 prohibits only arrangements that walk, talk and act like a marriage, and an insurance benefits program for dependents doesn't," Stewart wrote in a Salt Lake Tribune guest editorial last May.
Stewart, who now works for the Utah County-based Marriage Law Foundation, still stands by that interpretation.
But Anderson's policy has revealed a schism in the ranks of Amendment 3 supporters.
Christensen has dismissed statements that counter his own as "fringe arguments." At the same time, the conservative Republican has refined his own debate.
Last year, he focused his arguments on "independent rights" that can be preserved by private contracts, such as powers of attorney and inheritance. Anything more could rise to the level of rights reserved for married couples, he said. Now, Christensen says medical benefits are not necessarily limited exclusively to legal spouses, but when the mayor's policy awards them based on a "domestic partnership," that violates the amendment.
He supports the Alliance Defense Fund's lawsuit against the city. But he also says a different plan being drafted by City Council staff (which would extend benefits to employees' roommates, parents, siblings and unmarried partners) would likely be legal. And he believes the University of Utah's benefits program does not violate the state constitution.
"The glaring problem with the mayor's proposal is [that] the linchpin of his plan is the creation of a domestic partner status and the registry to go with it," Christensen said. "He's more intent on creating a substitute for marriage in the form of domestic partners than in simply accomplishing what he says is the goal, which is to expand health [insurance]."
If Amendment 3 proponents' views have taken a sharp right turn, amendment opponents' argument that the law "goes too far" seems to have shifted into reverse.
By supporting Anderson's policy, Democratic Salt Lake City Sen. Scott McCoy says he is testing the promises of the amendment's supporters. McCoy says he did not debate the legality of the U.'s plan for fear of making it a target. Instead, he tried to argue the potentially broad implications of the amendment.
"We were walking a fine line ourselves. During the campaign, we were trying to warn people of a possible interpretation of the amendment that was very wide and very hurtful or dangerous," McCoy said. "Our warnings are coming true."
A similar scenario is playing out in many of the other 10 states that adopted gay marriage bans in the last election. Carrie Evans, legislative director for the Washington D.C.-based Human Rights Campaign, said many of the amendments used broad, undefined language rather than simply defining marriage as the union of a man and a woman. As a result, both Ohio and Michigan have denied domestic partner health benefits or domestic violence protections for unmarried couples.
Evans said amendment proponents' ultimate goal was to block such benefits - while telling voters something else.
"They're saying what they think the voters want to hear: This is about marriage and it's not about anything more than that."
Amendment opponents tried to warn voters, but the debate was confusing, Evans added.
"The architects of the amendments fully intended this was the end goal. They're really going after domestic partner benefits and other things," Evans said. But "we didn't really have any evidence of that [during the campaigns].
"We could talk from a legal interpretive standpoint. It was really hard not to sound like Chicken Little."
Other amendment critics say both sides got caught up in dissecting the second section of Utah's amendment, obscuring the amendment's larger discriminatory goals, and confusing voters.
"It was easier and simpler for us," said Dani Eyer, director of American Civil Liberties Union of Utah. "It's an attempt to legislate discrimination. The skirmishing over part 2 was irrelevant."
Whatever the larger goals of the amendment's writers, the courts will have to determine what the amendment actually does. As a team of legislative attorneys and analysts wrote in the 2004 voter guide:
The scope of the law "may be more precisely defined by Utah courts as they interpret the provision in the context of lawsuits that arise."
Then & Now
(with attorneys Bill Duncan and Richard Wilkins in "The True Legal Effect of Amendment 3" by Yes for Marriage, Sept. 8, 2004.
THEN: "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 benefits like health insurance coverage to someone designated by a public employee even if the employee is not married to that person.
"The amendment would have no effect on a legislative decision to extend identified benefits to unmarried persons."
From
NOW: "Amendment 3 prohibits only arrangements that walk, talk and act like a marriage, and an insurance benefits program for dependents doesn't."
(From his guest editorial in The Salt Lake Tribune on May 1, 2005.
LaVar Christensen
(Christensen, the amendment sponsor and GOP state representative from Draper, and West Jordan Republican Rep. Chris Buttars in the Utah Voter Guide, October 2004)
THEN: "This amendment does not deny any existing rights under Utah law. Despite the opponents' contentions, 'sexual orientation' is not comparable to race, religion or ethnicity. If needed, their concerns can be separately addressed without sanctioning and giving blanket marriage status to same-sex couples."
THEN: "It leaves the Legislature free to specifically legislate on a case-by-case basis with great compassion and fairness for any individual grievances that may arise."
(On KUED's "Civic Dialogue" in 2004)
NOW: The mayor is "trying to create his own marriage and divorce laws within the city limits."
"This proposed action violates public policy as found in our statutes."
(In a Salt Lake Tribune article Sept. 22, 2005, and in an interview with a reporter)
(The argument against Amendment 3 in the voter guide, written by Biskupski, Salt Lake City Democratic Rep., Dr. and Mrs. Gary Watts and University of Utah law professor Terry Kogan.)
THEN: Amendment 3, "means that same-sex couples in committed, long-term relationships can never receive any of the more than 1,000 legal rights and protections provided to married couples. We're not just talking about tax benefits and inheritance rights. We're talking basic rights, such as the ability to visit one's partner in the hospital or make medical decisions in an emergency. The amendment would also deny same-sex couples health insurance benefits currently offered by many prominent Utah employers."
Scott McCoy
(State Sen., D-Salt Lake City and director of the Don't Amend Alliance, on KUED's "Civic Dialogue.")
THEN: "The amendment goes much further than a simple definition of marriage and actually denies basic rights and legal protections to a whole host of nontraditional families in Utah."
(On SLC Mayor Rocky Anderson's policy in an Oct. 7, 2005 Salt Lake Tribune article)
NOW: A registry "doesn't do anything close to a marriage or a civil union. [Opponents] use Amendment 3 as if it were a referendum on anything gay. That's a misuse and misinterpretation of Amendment 3. Amendment 3 supposedly was just about marriage and civil unions."