The Current State of Same-Sex Marriage in Utah

SALT LAKE CITY – The current state of gay marriage in Utah is… limbo.

As weawait a legal decision, I cannot help but thinking back to my first real brush with this topic. It was just a few days before Christmas in 2013 and I was fretting over buying gifts for family and friends as I drove home from work. I didn’t really want to go out shopping. I just wanted to drive home, pop onto the internet and relax. As I was driving home I had the radio tuned into the local news station so I could hear the weather and the traffic, when news arrived that left me stunned.

Utah Was the Latest State in the Union to Legalize Gay Marriage

I didn’t even know what to think. Utah? The reddest of red states? The place where Bill Clintonran for president and came in third place. We legalized gay marriage? I didn’t even know there was a fight going on about it. Thus I sat there in my car, a little bit stunned and thinking “When did this happen and why wasn’t I told!?!”

I had no idea what was going on. Sure, I usually hopped onto the DrudgeReport.com to catch up on national news, and hit theBBC website to discover what was happening internationally but when it came to local politics and what was happening in my own state I was completely ignorant. As I thought about this more, I realized I wasn’t just lacking knowledge about gay marriage in Utah, I really didn’t understand the subject at all.

When did all of this start?

Why did all of this start?

Didn’t California make it illegal already?

Didn’t George W. Bush make it illegal?

I knew it was legal in Denmark, but everything is legal in Denmark,

I needed to figure out what was going on, because I honestly did not know where I stood on the issue. My attitude used to be: I’m not gay. I’m not planning on being gay. So why should I care if they can get married or not?

I realized now this was a pretty dim way of viewing the world. Things happened in my home state that I don’t even know about. I should be educated on what is happening. I should know why it is happening and how we got here. Thus I resolved to figure the whole thing out.

Surely all my answers would be on the internet.

Surely.

Much to my chagrin, I could not figure anything out online. I kept finding news articles that did nothing but repeat themselves over and over again. I found blogs from protestors and counter-protestors, all raging about the subject but none of them explaining what was actually going on. Reading newspaper reports also proved just about as useless as watching the Weather Channel:

“I don’t care if its raining in Delaware! What is the weather here!?!”

All I found was one talking-head after another, bloviating about what they felt on the issue, and no one explained what was happening or why. I found a time-lineof events. That was almost useful, but it reminded me of being in AP History back in high school – lots of dates and zero context.

Finally I was able to find what I was looking for.

History

Strangely enough it all started in Hawaii. Now this was a shock to me, because Hawaii hasn’t voted Republican since Ronald Reagan was President. How can something that happened in Hawaii affect Utah? Simple. In 1993 the Supreme Court of Hawaii told the state legislators that they could not deny homosexuals the right to marry, unless they had a real good reason. Like, science stuff.

Apparently this must have scared the socks off of politicians in Utah, because they began putting together legislation to prevent the Utah Supreme Court from ever making a ruling that favored gay marriage. Remember, this is the only state where Ross Perot beat Bill Clinton in a presidential election. Now if you’ve forgotten who Ross Perot is, don’t worry… everyone has.

Anyway, Norm L. Nielsen of the Utah legislator, drafted a bill that would ban gay marriage. As I mentioned earlier, I looked all over the place for this and I could not find the actual legislation. All I could find was people talking about the legislation. My friend pointed me in the right direction and I was able to read the bill for myself.

Mike Leavitt’s Role in the Same Sex Marriage Ban

In 1995 Utah governor Mike Leavitt signed into law Utah House Bill 366, sponsor by Norm L. Nielsen. This revision to the state’s Constitution, Chapter 30-1-4, supporting the clauses outlined in Chapter 30-1-2 in paragraphs (1), (3), and (5) which affirmed that marriage is prohibited “between persons of the same sex”.(utah.gov)

So, after I read this… I called my friend back to ask him to explain it to me, because I could not make heads or tales of what Norm L. Nielsen wrote. It was all written in “lawyer speak” and I only know how to speak English and bad English. As I recall how it was explained to me, this bill reinforced an existing ban on gay marriage and stipulated that if another state (like Hawaii) made gay marriage legal, that couple’s union would not be recognized in the state of Utah.

Finally this made sense to me. I also learned that this legislation became the first state law passed in defense of marriage, following the 1993 ruling by the Hawaiian Supreme Court. Now, you can imagine how shocked I was to discover that this whole “Defense of Marriage” thing actually started in my own back yard. I did not know that Utah’s governor (who was Republican Mike Leavittback in the 90s), had been the first guy to slam the breaks on gay marriage. Who says flyover country can’t be trend setters?

Defense of Marriage Act

What surprised me even more was discovering that Bill Clinton slammed an even bigger break on gay marriage when on September 21, 1996 he signed into law a national version of the Defense of Marriage Act. Bill Clinton? Seriously!?! I always thought it was George W. Bush who was behind this whole thing but – no – it was Bill Clinton who did it! As a matter of fact, almost all the anti-gay legislation people have been fighting over, was stuff that Bill Clinton had signed into law. It is very strange to think of Republican Mike Levitt and Democrat Bill Clinton being on the same side of this issue.

Having learned this, I now wanted to know what the Defense of Marriage Act said. This brought me back to the language of lawyers. I discovered that the federal version of the Defense of Marriage Act is actually Public Law 104-199. This federal law amended Chapter 115 of title 28 to add a new section titled 1738C, which read:

”No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.” (gpo.gov)

Surprisingly, I actually understood the federal statute better than the local one. So, this is how I learned that Utah and Hawaii kicked off the whole gay marriage debate. By 1998 Hawaii had made gay marriage legal, then the people in Hawaii amended their constitution to ban it. Now Utah wouldn’t change its Constitution to ban gay marriage until 2004, withConstitutional Amendment 3 which had a helpful Wikipedia entry. This was not just a law on the books like the Defense of Marriage Act, rather it outright defined marriage as only being between a man and a woman.

While I often heard about court cases and legal battles going on in other States, surprisingly, Utah did not really seem to be involved with this stuff anymore. I don’t recall having ever heard a thing about this subject going on in Utah, while listening to the radio or watching local news. Thus I never noticed any legal battles going on.

So now I give you Herbert v. Kitchen.This thing is so big, it has its own Wikipedia page, and I never really knew about it. None of my friends knew about it.

When Did the Tides Start to Change?

In this court case three couples – Derek Kitchen and Moudi Sbeity, Laurie Wood and Kody Partridge, and Karen Archer and Kate Call – sued Governor Gary R. Herbertand the state of Utah. They claimed that Utah’s ban violated the Equal Protection Clause of the fourteenth amendment which reads:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”(wikipedia.org)

As I have been told, the real game changer was the June 26, 2013 ruling by the United States Supreme Court that struck down Section 3 of the Defense of Marriage Act that I posted above; the part that says that marriage is only between one man and one woman. This part I did remember hearing a lot about but, not because of gay marriage. To my best recollection, here in Utah this court decision spurred debate on Utah’s peculiar institution of polygamy.

On December 20, 2013 a federal judge struck down Utah’s constitutional ban on gay marriage. Efforts to stop people from getting married were stymied until the U.S. Supreme Court got involved and blocked people from getting married until this case finally made its way to the 10th Circuit Court of Appeals.

What Does This Mean for Same Sex Marriage in Utah?

And that is where I come in. The ubiquitous casual observer, puzzled and confused, waiting for a decision that may not come for six more weeks. I still don’t know what I personally feel about gay marriage. I cannot see how it hurts me if two men or two women decide to become another marriage statistic in our national divorce rate. I still don’t understand why the government should be involved in marriage in any way, shape, size or form. After all, when it comes right down to brass tacts, isn’t this all just pedestrian contract law? Why should the government be telling anyone who they can and cannot sign a contract with? Where in the Constitution of the United States does it give the Federal Government any right to make a decision about marriage, pro or con. I read it. I could not find it.

I will tell you what I am concerned about. I think about all those couples in Utah who got married during the brief window in which the act was legal… now forced to wait and see if their vows mean a thing before the eyes of the law. I think about them and I feel bad for those people, because they are living in limbo. Their name change may not be legal, now. What does that do for their social security cards and their tax forms with the I.R.S.? How does this affect adoptions? I know I would much rather have a child go to a nice gay couple than live in the turmoil of our broken foster care system.

Where Do We Go From Here?

I think I will have to update this post periodically between now and the court decision from the 10th Circuit court in Denver Colorado. This whole issue might be decided right there and then, or it might not be decided until the Supreme Court hears the case. We might have to go through this all over again, if this is brought to the American people as an amendment to the United States Constitution at the federal level. What I do know is that I now understand how we got here. Wherever I personally fall on the issue, I know that my stance might be different than yours. I also know that no one should tell any of us how to think and feel on this subject; that is a personal choice. It is up to all of us to look at the law and look into our hearts, then decide for ourselves what we believe. I just hope that, as you choose which side you are on, you do it from a well informed position.