Worries about possible Supreme Court action has Utah lawmaker pushing to repeal the state’s ban on same-sex marriage

Sen. Derek Kitchen wants to repeal Utah’s law banning same-sex unions, but a constitutional prohibition would remain on the books.

(Rick Egan | The Salt Lake Tribune) Derek Kitchen holds up the Marriage recognition Policy during a news conference discussing efforts to codify same-sex marriage in Utah law, at the Capitol, on Tuesday, June 7, 2022.

Sandwiched between an American and a pride flag, Sen. Derek Kitchen said Tuesday he’s worried the Supreme Court may soon end the nationwide right for same-sex couples to marry.

“When one fundamental right is under attack, all fundamental rights are under attack,” Kitchen said during a news conference on the steps of the Utah Capitol. What has him worried is the looming Supreme Court ruling that could overturn the 1973 landmark ruling in Roe v. Wade, which made abortion legal in all 50 states. Last month a leaked draft Supreme Court opinion authored by Justice Samuel Alito had the court striking Roe.

Legal experts contend Alito’s reasoning in that leaked opinion could pave the way to overturn other Supreme Court decisions, including the 2015 ruling in Obergefell v. Hodges, which legalized same-sex marriage. If that were to happen, same-sex unions would become illegal in Utah again because there is still a statute and a constitutional amendment banning those marriages on the books.

Sen. Derek Kitchen, D-Salt Lake City, said Tuesday he plans to introduce legislation next year to repeal the existing Utah statute blocking the recognition of same-sex marriages.

“By codifying marriage equality, this means giving comfort, security and safety to our community. It will set an example,” Kitchen said. “We must take action to ensure our families are protected.”

Last month’s leaked Supreme Court decision struck down the 1973 Roe v. Wade decision, arguing the right to an abortion was not “deeply rooted in the Nation’s history and traditions.” If Roe v. Wade is reversed, abortion laws would be up to individual states.

Some court observers say that the same rationale could strike down Obergefell v. Hodges, the case that legalized same-sex marriage nationwide, throwing the issue back to the states.

Right now, the threat to marriage equality is hypothetical. There are no cases on the horizon that could lead the Supreme Court to reverse Obergefell.

(Rick Egan | The Salt Lake Tribune) Jim Obergefell talks about efforts to codify same-sex marriage in Utah law, during a news conference at the Capitol, on Tuesday, June 7, 2022.

Jim Obergefell, the lead plaintiff in that landmark case, joined Kitchen at Tuesday’s news conference to support Kitchen’s effort.

“We need to protect the right to marry at the state level because we don’t know what will happen at the federal level from the Supreme Court,” Obergefell said. “We deserve to be treated equally. We deserve to be part of ‘We the people.’”

Kitchen was the plaintiff in the 2013 court case that ruled Utah’s ban on same-sex marriage was unconstitutional.

Kitchen’s proposed law has several hurdles to overcome if he’s successful. He needs to wrangle enough votes to pass the Republican-dominated Legislature. He says he has had conversations with a handful of his Republican colleagues but has not approached leadership.

Before any of that can happen, Kitchen must survive his primary election matchup against Jennifer Plumb. He defeated Plumb in the 2018 Democratic primary election with 52.6% of the vote.

Even if Kitchen’s effort is successful, there’s still a provision in Utah’s Constitution that bans same-sex marriage. Kitchen acknowledges this would be a multi-part process, and his proposal is just a first step.

“This is just one bit on the road to full inclusion, but it’s an important one because it maps out the fact that our policy as a state is to ignore LGBTQ families, and we need to update that policy,” Kitchen said.