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A footnote on Utah's gay marriage ban

Published December 10, 2013 2:07 pm

This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

In 2004, lawmaker LaVar Christensen — a Republican who currently represents Draper in the Utah Legislature — sponsored the "joint resolution on marriage," which put Amendment 3 on that November's ballot. Voters subsequently approved the amendment, which banned same-sex marriage and is currently the subject of a lawsuit in Utah's federal court.

In a note included with the proposal, the Office of Legislative Research and General Counsel made this prescient observation:

"In Zablocki v. Redhail, 434 U.S. 374 (1978), the United States Supreme Court concluded that the right to marry 'is of fundamental importance,' requiring 'critical examination' of the state's interest in creating a classification that interferes with that right."

"The Court has not specifically decided whether a state's interest is sufficiently compelling to justify restricting the right to marry to a man and a woman. Other cases could be argued by analogy to suggest that restricting the right to marry to a man and a woman violates federal due process or equal protection provisions."

"If the amendment to the Utah Constitution proposed by this joint resolution is approved by voters and becomes part of the Utah Constitution, it may be susceptible to challenge under the federal due process or equal protection grounds. Relevant case law is inconclusive, and how a court would ultimately decide the constitutionality of the provision under the United States Constitution in the context of a specific lawsuit is difficult to predict."

—Brooke Adams