This is an archived article that was published on sltrib.com in 2015, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
With the 2016 Legislature convening next month, Gov. Gary Herbert has said all state statutes need to be examined to ensure they comply with now-legalized same-sex marriage.
First, bureaucrats and lawyers will have to identify possibly hundreds of sections in state code that will need changing to fit a definition of marriage that includes same-sex partners. Lawmakers then will have to approve the new language.
But the most glaring inconsistency — between what Utah officially says and what the supreme law of the land officially is — rests in the Utah Constitution, and that will be harder to fix.
You see, Amendment 3 defines marriage as between one man and one woman. Rectifying that will take more than a few simple word changes.
The amendment was created in 2004, first by a two-thirds vote of the Legislature to get it on the ballot, then by an overwhelming majority vote of Utahns in the general election.
Utah was one of numerous states that year with ballot propositions to change their constitutions to protect so-called traditional marriage. The amendments were pushed by campaign strategists of then-President George W. Bush in what many political pundits argue was an attempt to attract more conservative voters to the polls in Bush's re-election year.
To remove that amendment now, two-thirds of the Legislature once again must agree to put the measure on the ballot, then voters must approve the repeal at the ballot box.
That probably won't happen anytime soon, but while the Utah Constitution's Amendment 3 will remain unconstitutional, it also will be unenforceable and stay harmlessly on the books — unless some ill-advised government official tries to enforce it.
That would be fun to watch.
The late civil-rights attorney Brian Barnard used to scan the Utah Code for outdated laws that, based on subsequent Supreme Court decisions, would be deemed unconstitutional.
Barnard would find plaintiffs who could show they were harmed by the statutes and sue. The state would stipulate the laws were unconstitutional, judges would find for the plaintiffs and Barnard would pocket a few thousand dollars in lawyer fees from the state.
But, in the 1980s, then-Utah Attorney General David Wilkinson, who was not shy about displaying his dislike for Barnard, fought one of those lawsuits. The move resulted in dueling briefs between the attorney general's office and Barnard, increasing the civil-rights lawyer's billable hours.
When the ruling came down and Barnard had won, his attorney fees were substantially higher than what he normally earned.
Wilkinson, chafing at the idea of paying Barnard's fees, delayed the payment. So the latter obtained an order from the judge to garnish Wilkinson's wages until the debt was paid.
Barnard got his check the next day.