McEntee: It's time for supreme justice — legalize gay marriage

Published January 30, 2013 9:58 pm

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Seventeen years ago, the Utah Senate met in (what else?) a closed-door and illegal meeting to thwart gay-straight alliances in public high schools.

On Wednesday, the Utah Pride Center announced it will file a friend-of-the-court brief encouraging the U.S. Supreme Court to strike down the federal Defense of Marriage Act (DOMA) and California's Proposition 8.

Both have been declared unconstitutional in lower federal courts. DOMA denies gay married couples joint tax filing, Social Security survivor payments and countless other federal benefits available to wedded straight couples.

Prop 8 is a ban on same-sex marriage approved by voters — and supported by the Utah-based LDS Church — after California had a brief period in which gay couples could marry (and remain married today).

Both are relics of a time when anti-gay sentiment was much more rife than today. Polls now show more Americans than ever have embraced the idea that gay marriage not only does no harm to straight marriage but also offers stability and protection for all of society.

I need only look to my married gay friends and relatives to know that, while many had years of living and loving together, marriage was the moment when all that trust solidified into equality under the law in the increasing number of states that allow it.

Utah has been hostile to gay rights for decades. Political and religious figures have tried to undercut initiatives as innocent as protecting the lesbian, gay, bisexual and transgender community from housing and employment discrimination.

To its credit, the LDS Church, after long discussions with gay activists, endorsed Salt Lake City's anti-discrimination ordinance, and some Utah cities and counties have followed the capital's lead.

But Utah Pride wants more, and it should. Attorneys Paul Burke, a Democrat, and Brett Tolman, a Republican and former U.S. attorney for Utah, have teamed up to write the brief, which is due by the end of February.

"The brief will argue that the United States Supreme Court should recognize that laws affecting the LGBT community should be subjected to heightened judicial scrutiny and … will argue that [the court] should recognize a federal right to marriage equality," Burke said in a news conference Wednesday.

Tolman added: "It is a monumental moment. I think it is a crossroads in our history that we will look back at as another opportunity for individuals to stand up and be counted on civil equality."

Given Utah's history — the 2004 amendment to the Utah Constitution to ban same-sex marriage, a sex-ed curriculum that bars "advocacy of homosexuality," a ban on same-sex adoptions, the inability of same-sex couples to enjoy the legal benefits given to their straight counterparts — it stands to reason that the high court should cover all the legal bases in deciding the two cases before it.

But, as Tolman said, the court is "wily" and could avoid the ultimate issue of marriage equality, leaving states with a "patchwork approach that in the end will discriminate against individuals — Utahns and others."

As of Tuesday, 41 entities — including the U.S. Council of Catholic Bishops and the National Eagle Forum — had filed amicus briefs supporting Prop 8 and DOMA.

Given Utah's conservative political atmosphere, I have no illusions that anything regarding gay marriage will change anytime soon. But the high court could change that. It will hear arguments on DOMA and Prop 8 in March and is expected to issue its rulings in late June.

I'm not the praying type, but I do hope with all my heart that the justices will understand that gay equality is the civil rights movement of our time and will rule not to the right, but for equal rights.

Peg McEntee is a news columnist. Reach her at pegmcentee@sltrib.com, facebook.com/pegmcentee and Twitter: @pegmcentee.