A candidate for Utah County Clerk says he won’t issue marriage licenses for same-sex couples if he’s elected, arguing any federal regulation of marriage is unconstitutional. Jake Oaks, running under the banner of the Independent American Party, said on his webpage that regulating marriage is not a power granted to the federal government under the Constitution. Furthermore, Utah’s Constitution defines marriage as between a man and a woman, which is why he says he plans to stop issuing licenses to same-sex couples if he wins.
“I think it’s important that we follow what the Constitution says. I swear an oath to the Constitution of the United States and the state constitution,” " Oaks said. “I would have to enforce what our state constitution says with there being no delegated powers to the federal government to be able to define marriage.”
Utah’s constitutional prohibition on same-sex unions, known as Amendment 3, was approved by voters in 2004. Although it’s still on the books, it was struck down by a federal judge in 2013 who ruled it violated the 14th Amendment’s guarantee of equal protection and the 5th Amendment’s guarantee of due process. The decision was appealed to the Supreme Court, which refused to hear the case.
“If you’re going to stretch it that way, then somebody could say the 14th Amendment would allow them to do anything they please in society because it’s their right to pursue what they want,” Oaks said. “We have to be strict on the defined powers in the United States Constitution.”
Oaks, who says he’s primarily self-taught on constitutional matters, refused to say the courts decided the case wrongly but repeatedly pointed to the 10th Amendment, which says any power not given to the federal government is reserved to the states. Since the Constitution does not mention marriage, by Oaks’ reasoning, the federal government has no business telling Utah what to do when it comes to marriage.
Oaks’ stance is reminiscent of Kentucky county clerk Kim Davis, who defied a federal court order to issue marriage licenses to same-sex couples. She cited personal religious objections to same-sex marriage for her refusal. Davis spent several days in jail after a judge cited her for contempt. She was released after agreeing not to interfere with her deputy clerks, who had begun issuing licenses.
The Utah County Clerk’s office estimates they issue about 50 same-sex marriage licenses per month. Not all of those are for Utah County, as couples from all over the state take advantage of the convenience of their online system.
If Oaks were to follow through with his plan, it would most likely bring a reaction from the federal government or, at the very least, a lawsuit. Does he believe the cost of defending against the feds or fighting a lawsuit is a good use of county resources funded by taxpayers?
“What comes afterward is of natural consequences, whatever may come. The question is whether I’m going to uphold my oath,” Oaks responded. “What is the Constitution if we don’t follow it?”
The threat to stop issuing same-sex marriage licenses brought a sharp rebuke from Troy Williams, executive director of Equality Utah.
“In Utah, every gay couple has the liberty to marry, and every county is legally obligated to provide clerks who will issue licenses and officiate if needed. This issue was settled in state law back in 2015. If Jake doesn’t wish to solemnize same-sex marriage licenses, he doesn’t have to; however, he will then be prohibited from solemnizing straight weddings, too. All couples must be treated equally. Clerks cannot pick and choose which legal marriages they issue licenses for. It’s all or nothing,” Williams said.
In 2015, the Legislature passed a bill allowing government officials to opt out of performing same-sex marriages so long as there is someone else inside the office who could marry them.
Oaks is facing Republican Aaron Davidson in November’s election. There is no Democrat in the race.
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