This paper recently published an op-ed entitled, "Utah cannot justify marital apartheid." The authors, frequent contributors, accuse supporters of Amendment 3 of anti-gay animus.
But their use of "apartheid" to describe Utah’s Amendment 3 actually shows why the term is inapplicable. "Apartheid," literally "apart-hood," connotes the horrid and murderous history of racial segregation in South Africa whereby laws were imposed to keep majority black citizens separate from the minority white Afrikaners by threat of criminal penalty.
Efforts to equate Amendment 3 with miscegenation laws in American history are similarly unfair. There also, laws were enacted to criminalize marriage between men and women of different races. People who married in violation of those laws were actually subject to imprisonment for their actions.
The amicus brief recently submitted by the consortium of churches in Kitchen v. Herbert relies in part on a citation to the Supreme Court case of Murphy v. Ramsey. In that case, the Supreme Court upheld the Edmunds Act disenfranchising and imprisoning Mormons who sought to maintain their polygamous families — relationships that were legal when entered into. To see real "apartheid" on this issue, in other words, we need only look back in Utah’s history.
In contrast, laws like Amendment 3 do not impose criminal punishment to enforce an "apart-hood." They seek merely to preserve the history, ideal, and status quo of marriage, defined as between a man and a woman.
I understand the debate to be a maddening contrast of competing tautologies. On the one side, opponents of same sex marriage argue: Men and women are different. Thus, marriage between men and women will produce something unique. And the state has a rationale basis, founded in history, social science or otherwise, to define that relationship as "marriage."
On the other side, same-sex marriage supporters argue: But by defining marriage as man-woman, Utah has, by definition, excluded other relationships. This is equally true. A legal definition will always exclude. What is left is whether the distinction is permissible according to our principles of equity and fairness.
While I personally disagree with Judge Shelby’s recent ruling, and as a lawyer, I think he kind of turned constitutional analysis on its head, I can appreciate where he was coming from. I think we are all a little uncomfortable with the idea that our friends and neighbors feel victimized and excluded. It is not something we want.
Judge McKay used to say of criminal defense law, "But for the grace of God, it could be me." Despite calls against "activist judges," I think we are all more comfortable with a judge who errs on the side of individual liberty.
But in this ever-increasing environment of expanded individual liberties, the marriage debate gives many Utahns pause. And it is not because we are bigots. It was not fair to conclude that supporters of Amendment 3 were motivated by anti-gay animus. And it is not fair for opinion writers to accuse those same Utahns of seeking a system of "marital apartheid."
I would like to see more emphasis on our unity as opposed to apart-hood as we consider this issue. For example, Amendment 3 was passed at the same time those very same Utah citizens in many cities across the state, with the support of the LDS Church, expanded increased legal protection and accommodation to same-sex couples. And such a bill would have likely passed at the state level during this session had this ruling not stirred the pot in late December.
Perhaps those opinion writers would say, yes, just the kind of sweeping nefarious plot you would expect from anti-gay bigots. But would it not be more fair to acknowledge that people of good will can sometimes disagree on how we should bridge the gap of tautologies and define marriage in the law?
I feel like I have a unique perspective on this issue. My husband and I lived through the Prop 8 battles in California. In the aftermath of the election that year, we attended church with protesters outside calling us "Mormon maggots" for our beliefs. I personally experienced the gay community mobilizing to punish and discriminate. Yet I refuse and reject imputations of animus or bigotry to both sides of this debate.
For better and worse — even in sickness and in health — it’s e pluribus unum when it comes to these contentious issues. Or as I want to say to those accusing us now of "marital apartheid": E pluribus frickin’ unum (in the appropriate Utah dialect). We may disagree, but whatever we face here, we face it together.
Michelle Mumford is the assistant dean of admissions at BYU Law School and a former 10th Circuit Court clerk.
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