Tribune Editorial: The same-sex marriage battle is over

(Al Hartmann | The Salt Lake Tribune) Attorney Edwin Wall speaks before the state Supreme Court Tuesday Sept. 12 for a married gay couple over a law that prevents married gay men from having biological children through surrogacy. The couple says the state law prohibits them from becoming biological parents with the help of a surrogate.

How long will the state of Utah force its LGBTQ residents to battle for their constitutional rights?

On Tuesday, the Utah Supreme Court heard a case brought by two married men who attempted to enter a surrogacy contract with a woman willing to bear their child. A Utah district court judge refused to validate the gestational agreement because the state statute requires that a “mother” provide medical evidence she is unable to have children. In the case of two married men, there is no mother.

The statute is discriminatory when it is applied to men. Under this statute, a man cannot enter a surrogacy contract with a gestational mother if he is married to a man. A woman, though, can enter a contract with a gestational mother whether she is married to a man or a woman. Thus, the law treats men unequally.

The Supreme Court decided in the 2015 Obergefell v. Hodges decision that state prohibitions against same-sex marriage are unconstitutional. State surrogacy law requires that “the intended parents shall be married.” The two men in the case currently before the Utah Supreme Court are married. That should be the end of the analysis.

State attorneys did not defend the surrogacy law. The attorney general’s office agreed with the petitioner that the court should have applied the law in a gender-neutral way.

So we have a case with only one side.

On this issue, some state court judges have been active when they should have been passive, and passive when they should have been active.

Like the judge in Carbon County who removed a foster baby from a lesbian couple’s home because the couple was lesbian. He retired soon thereafter.

The Legislature is doing its part, slowly. It made changes to the Utah code this past session in Senate Bill 147, which added mothers and fathers to child support obligations and presumptions of parentage.

But this isn’t Utah’s first post-Obergefell problem. Equality Utah sued last year over Utah curriculum laws that prohibited the advocacy of homosexuality in schools. The case was put on hold while the Legislature repealed the law.

The Equality Utah case targeted the last negative reference to LGBTQ relationships codified in state law. But laws prohibiting gay marriage and sodomy are still on the books, even though they are not enforced. Beyond explicit discrimination, laws may still exist that implicitly discriminate by being enforced in a discriminatory manner — like the surrogacy law that treats men and women in same-sex marriages differently.

The Legislature should clean up state code by repealing unconstitutional laws in our post-Obergefell world relating to marriage, child-rearing, adoption, sex education and any other related issue.

And Utah judges should affirm the fact that the fight over gay marriage is over.