Their imagination is horribly limited. Their faith is misplaced. Their amendment is misguided.
The amendment is as troubling as it is brief. It says, in full:
“(1) Marriage consists only of the legal union between a man and a woman.
“(2) No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.”
The first sentence is about as straightforward as law gets, elevating various state statutes on the subject to the lofty and relatively untouchable level of constitutional stone. A needless exercise, but one in keeping with the widespread belief, shared in this space, that marriage, as formally recognized by the state, is a boy-girl affair.
The second sentence is the deal-killer, not only for us but for politicians and activists left, right and center.
The problem is that by going beyond the simple reservation of marriage to traditional couples, the second sentence sets sail into the murky waters of “domestic union” and “substantially equivalent.” There be dragons. Or, at least, litigious lawyers and activist judges enough to frighten even the strongest legal eagles.
In admittedly trying to make sure that nobody does an end run around the amendment to create some sort of faux marriage, or import one from another state, the language calls into question huge portions of existing law and culture, as well as civil unions for same-sex couples and other good ideas that might be proposed.
Would Amendment 3 leave all existing common law marriages in limbo? Would it void the statute that criminalizes domestic partner abuse? Would it create a cause of action for a worker or stockholder offended that a firm offers employee benefits to same-sex partners? Would it forbid the Legislature from taking steps, favored even by many conservatives, to provide same-sex couples with such marriage-like benefits as joint ownership and the right to make medical decisions?
Backers of Amendment 3, including some formidable legal minds, say no, no, no and, definitely, no. But how can they know?
It wasn't that long ago that nobody dreamed of a state's supreme court ordering gay marriages, or another state's legislature creating formal civil unions. The idea that the amendment's backers can foresee every challenge that might be brought, every decision that might be made, under their proposal is absurd.
Scrupulous judges unsure of just what the amendment is supposed to mean would normally look to the deliberations of legislative committees and the Utah Constitutional Revision Commission to guide them. Except, in this case, there are none. Lawmakers deliberately side-stepped anything resembling consideration in rushing this measure onto the ballot in the closing hours of their last session. Judges will fill in the gaps as best they can.
About the only certain future for Amendment 3 is in federal court, where it could cost taxpayers millions of dollars, drag the private lives of good and decent people into public conflict and, eventually, lie in ruins before the Equal Protection Clause of the U.S. Constitution.
The vote is no.
