This is an archived article that was published on sltrib.com in 2014, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
The demise of Amendment 3 last Monday returned marriage equality to Utah. The key lesson from this legal battle is plain: LGBT citizens are endowed with the same unalienable rights and must be afforded the same legal rights as everyone else.
The U.S. Constitution commands nothing more — and will accept nothing less—than equal rights for all. No longer may Utah demote its LGBT citizens to second-class citizenship.
Gov. Gary Herbert has rightly pledged that Utah will uphold and sustain the law of the land, and we trust that other public officials will follow his lead by accepting — and not attempting to undermine — the judgment of the courts. Furthermore, to promote tolerance and healing, Utah's leadership can foster reconciliation and unity by showing that the Amendment 3 debate was truly only about the definition of marriage, and not about animus. Now is the time for Utah to enact housing and employment non-discrimination laws to protect all Utahns.
In so doing Utahns can be faithful to the unifying sentiment often expressed during this public discussion: namely, that no matter how one previously viewed the constitutional right to marriage, there exists a broad consensus that no person should suffer the demeaning effects of discrimination. Indeed, this pledge lies at the heart of our State's founding history and, we believe, continues to live in the hearts of its citizens today.
For the same reason, the legislature should repeal the antiquated system of laws that denigrate LGBT Utahns. At every stage in life — from the moment a child has an inkling of being gay, during adolescence, throughout adulthood and all the way to the grave — LGBT Utahns are still haunted by laws that demean them as lesser human beings and deny them full and fair participation in our communities.
The U.S. Supreme Court has affirmed that the states generally govern the realm of domestic and family law, but the "sovereign authority [of Utah] to define and regulate marriage" is not unlimited. As the U.S. Supreme Court pointedly explained in its decision striking down part of the Defense of Marriage Act, "State laws defining and regulating marriage, of course, must respect the constitutional rights of persons."
There is reason to remain vigilant in protecting these constitutional rights. Some may wish to undermine the spirit and effect of the recent court action. For instance, one legislator has suggested creating a statutory distinction between same-sex and opposite-sex couples. This concept is patently unconstitutional. The state cannot withhold any privilege or benefit of marriage from same-sex couples, including the title of marriage for their unions. Even if same-sex couples were to receive all other benefits of marriage, the withdrawal of the title would convey an unconstitutional message that the state disfavors certain persons based on their membership in a stigmatized group.
Honoring and sustaining the law includes giving effect to the heart of the ruling, which promotes the right to pursue happiness and to nurture family relationships. Accepting our uniquely endowed differences, dreams, and aspirations requires that we abandon any legal fiction that gay parents are inferior or should be afforded less than equal treatment under the law.
This equality of gay parents became a pivotal issue during the defense of Amendment 3. The state originally claimed that same-sex parents were inferior to opposite-sex parents, relying on a "study" that was subsequently discredited, which forced the state to withdraw this argument. Thus, even the Attorney General's Office that so determinedly defended Amendment 3 had to concede that there is no credible evidence that same-sex parents are inferior in any way.
The Legislature should also recognize that it cannot treat married gay couples any differently from married straight couples within Utah's family law and adoption statutes. We trust that the excellent attorneys at the Office of Legislative Counsel will advise legislators about the futility of trying to impose second-class citizenship on LGBT citizens, and will add fiscal notes to unconstitutional bills indicating the high price Utah taxpayers will pay for any future discrimination against LGBT citizens.
Last week's announcement by the U.S. Supreme Court made it inevitable that LGBT Americans will enjoy legal equality. We hope that Utah legislators will focus on healing divisions and modernizing Utah's domestic code to bring all families within the protections of Utah law. Utahns can serve as a model of good faith and civility for rest of the country by embracing and accepting all Utah families.
Paul C. Burke, Brett L. Tolman and John W. Mackay led a team of lawyers representing the Utah Pride Center to file an amicus brief with the U.S. Supreme Court in the landmark case that successfully challenged parts of the Defense of Marriage Act.