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Will ban on same-sex marriage remain on Utah books despite new reality?

First Published      Last Updated Jan 25 2016 07:48 am

Public morality » Despite the new reality, changing Utah law is likely to be tough sell — just look at ban on extramarital sex.

In the wake of the U.S. Supreme Court ruling that legalized same-sex marriage in every state, Rep. Kraig Powell wants to repeal the Utah Constitution's ban on such unions and to scrub scores, if not hundreds, of references to the now-defunct policy in state statutes.

"Words matter," says Powell, a Heber City Republican and attorney. "The current state of the law is a certain way and if that is not reflected in our statutes, then I believe it could have unintended or detrimental consequences by leaving outdated language in place."

Powell will have a fight on his hands. And, if history is a guide, he'll likely lose.

Utah law is riddled with obsolete laws that have hung on for decades in symbolic denial of reality. Many of them have to do with traditional views of morality.

Fornication, under Utah law, is a class B misdemeanor, punishable by up to six months in jail.

The same is true for adultery and sodomy outside of marriage.

Utah also makes crimes of some nonsexual activities that have roots in moral taboo: Auto dealers are banned from selling cars on Sundays, and Utah is one of just two states (Hawaii is the other) that outlaw all forms of gambling — including lotteries, raffles, and wagers on horses, sports and even elections. All are Class B misdemeanors.

Another law prohibits uttering "obscene, profane or vulgar" remarks on a bus, or riding a bus while under the influence of drugs — but not alcohol. Either crime is classified as a Class C misdemeanor carrying a possible 90-day jail term.

State law on alcohol is rife with strict ­­proscriptions and prescriptions. Think Zion curtain.

Sporadic attempts have been made to weed out obsolete laws. Fifteen years ago, then-House Speaker Marty Stephenson led an effort to wipe out some 55 pages of code. Last year, Rep. Lee Perry, a Box Elder County Republican and Utah Highway Patrol lieutenant, successfully repealed some deadwood traffic laws, including a mandate for motorists to honk when rounding blind curves.

None of those efforts involved morals-based law.

Buzz saw • Former Republican lawmaker Dave Ure found out how difficult such an endeavor could be when in 1997 he tried to repeal the prohibition on sodomy between consenting adults.

"I kind of hit a buzz saw on that one," says Ure, now director of the state agency overseeing state school trust lands.

Opponents reasoned "if you take it off the books, it encourages more people to participate," he says, disputing the logic in that.

Ure notes the criminal ban on fornication and adultery. "That's stopped a lot of people, hasn't it?" he asks rhetorically.

Ure's repeal legislation never even made it to committee before he gave it up as doomed. (The law later was relaxed so as to exempt married, consenting adults.)

Powell, who is still drafting his proposed repeal of the same-sex marriage ban, knows the task he's embarked on isn't an easy one, particularly when it comes to amending the Constitution, which requires two-thirds legislative approval followed by a vote of the people.

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The 2016 Legislature begins

Utah’s 45-day legislative session gets underway Monday with lots of pomp and ceremony, including speeches by House Speaker Greg Hughes and Senate President Wayne Niederhauser.

The 104 lawmakers are expected to introduce approximately 1,000 bills, passing 300 or more into law before the March 10 conclusion of the session.