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Marriage amendment spurs official buck-passing
This is an archived article that was published on sltrib.com in 2005, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Amendment 3 wasn't supposed to deny unmarried couples basic rights.

That's what supporters of Utah's marriage amendment said all through the long election-season debate about the two-sentence constitutional change Utah voters approved to ban gay marriage. They promised that granting gay partners simple hospital visitation or health benefits wouldn't be a problem.

But Amendment 3 has stymied even initial debate of a partner medical benefits policy at Utah State University.

Patricia Lambert, a member of the Utah State faculty committee charged with studying benefits, is caught in the quagmire. "Ultimately, these things tend to end up in court for legal definition," Lambert says.

There is a cheaper option. A legal opinion from Attorney General Mark Shurtleff might clear up the questions. But in a flurry of buck-passing, Republican legislative leaders and the university's attorney have declined to request a legal opinion, pointing at each other as the appropriate party to take that step. And the attorney general will not issue such an analysis on his own.

Earlier this month, state Sen. Scott McCoy and Rep. Jackie Biskupski, both Salt Lake City Democrats, asked Shurtleff for a formal legal opinion about the amendment's effect on higher education institutions' ability to offer medical insurance benefits to its employees' unmarried partners. Shurtleff sent the letter back, telling McCoy and Biskupski that he would comply only if legislative leaders made the request. Last week, Senate Republicans declined.

"It's not really our game," said Senate President John Valentine. "It really is Utah State's game. Utah State [University] really ought to be the one making the request."

USU General Counsel Craig Simper threw the ball right back at legislators. Simper, who advised faculty senate members last month that Amendment 3 could block adoption of a partner benefits policy, said he won't ask Shurtleff for an opinion, either.

"We're basically very hesitant to lead out on it," Simper said. "We really do look for [legislators] to provide guidelines to us."

Shurtleff, who claims initiating a legal opinion on his own would violate his office's policy, won't do it unless someone - namely Republican legislative leaders or USU - asks for it. The attorney general took heat last year from conservative lawmakers when he and two other candidates for his office opposed the amendment when it was on the ballot.

"I kind of expected there would be somebody requesting an opinion," Shurtleff said last week. "I would hope that those questions would be resolved short of litigation."

Last November, 66 percent of Utah voters approved changing the state's Constitution in an attempt to block gay marriage. It took effect Jan. 1. The first sentence of the amendment defines marriage as the legal union of a man and a woman. The second sentence adds, "no other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect."

During the 2005 Legislature, Utah lawmakers balked at passing a law to grant property inheritance rights and end-of-life decision-making authority to unmarried couples. Simper viewed that as lawmakers "shying away from defining any benefits that go to partners."

McCoy, who led the fight to defeat Amendment 3, says the back and forth highlights the problems with the amendment. "All along, proponents of Amendment 3 were saying the amendment would not stop basic rights and legal protections and benefits for nontraditional couples and families," he said. "Unfortunately, we have a situation where [the amendment] is being used to prevent even a debate on whether or not it's a good idea to offer basic health insurance benefits."

Amendment 3 backer Monte Stewart says supporters of the constitutional change have been consistent in their interpretation of the law.

"It cannot be plausibly argued that extending one or two benefits to unmarried couples treats those couples as legally equivalent to married couples," Stewart and two other attorneys wrote last summer.

Lambert clings to that opinion - still posted on the Yes for Marriage Web site - as proof the university could offer medical benefits to same-sex partners. The anthropology professor believes it's a matter of fairness.

"We have a policy that says we can't discriminate in any part of employment," she said. "If we can't offer equal compensation to all our employees, regardless of their marital status, there's a conflict between our compensation and discrimination policies."

Stewart says the amendment cannot be blamed for the standstill at Utah State. "There is a distinction between what Amendment 3 allows and what policy-makers choose to do," he said. "That's not Amendment 3's fault if they choose not to do it."

USU study: Questions about benefits have some wondering who should clarify the new state law
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