The Utah Legislature has seen its fair share of bills meant to provide equality and protection for the state’s queer and transgender community. That is to say, at least a committee or two got to see these bills, before shuffling them to the bottom of the agenda, never to let them rise again. The bills had roundly been defeated, mostly by being ignored.
This year, a package of bills establishing legal protections for Utah´s LGBT communty is far from being brushed aside; it is actually causing political waves. While the bills are supported by Republican Gov. Jon Huntsman Jr., they´ve still encountered tremendous pushback from legislators and conservative groups. Known as the “Common Ground Initiative” by gay-rights group Equality Utah, the bills have pushed the conservative Sutherland Institute and other groups to set their own proposals in reaction. Sutherland has tagged it “Sacred Ground.” Proponents include the Constitutional Defense of Marriage group and its Common Sense agenda.
The groups have gone on the offensive, claiming the Common Ground Initiative is an elaborate ploy designed to legalize gay marriage in Utah. With both sides pushing hard with ad blitzes, lobbying, rallies and protests—the rhetoric in the debate is heating up. Both sides allege deceptive mudslinging and demand to know each other´s real agenda: Basic legal protections or redefining marriage? Equality or alienation? Equalit y Utah launched the Common Ground Initiative after the passage of California’s Proposition 8 in reference to an LDS Church statement that expressed support for basic protections—so long as they didn’t interfere with traditional marriage. It contains a package of bills offering employment and housing protection, partnership benefits and probate rights.
Of the six bills, two have already been sunk. A measure sponsored by Sen. Scott McCoy, D-Salt Lake City, would have allowed for nontraditional financial dependents to sue in wrongful death cases. It never cleared committee. Last week, Sen. Jackie Biskupski, D-Salt Lake City, yanked her own resolution—which would have allowed a public referendum on amending Utah’s traditional marriage amendment to the state Constitution. While Common Ground advocates have always maintained their push for basic protection has nothing to do with marriage, their foes disagree. In an interview prior to Biskupski dropping her measure, Jeff Reynolds, spokesman for the Sutherland Institute, pointed to it as evidence of Common Ground’s ulterior motives.
“Amendment 3 is safe, is what they’re telling the public,” Reynolds says. “If you’re not opposed to it, why are you messing with it?” Despite the fact that the resolution was removed from the bill package, Reynolds worries that collectively, the bills will create multiple legal avenues by which a court could determine that since LGBT individuals are granted rights similar to straight couples, they should also be able to marry. “It’s clear with Equality Utah, what their ultimate goal is,” Reynolds says. He points out similar bills were referenced by the Supreme Courts of California, Massachusetts and Vermont when same-sex marriage was legalized in those states. “By lumping all these [bills] together and trying to put the whole turkey into the microwave all at the same time, it’s pretty clear what [Common Ground’s] focus is.” Will Carlson, policy director for Equality Utah, agrees the focus is clear: “Our involvement on these issues was inspired by the fact that we have gay and trans people who are losing their jobs and are being denied access to their partners while in the hospital.”
Carlson sees the arguments presented by the Sutherland Institute and Defense of Marriage as disingenuous. He says of the three states allowing same-sex marriage, none of them had traditional marriage amendments beforehand. When California adopted one, the state stopped issuing samesex marriage licenses. “This slippery slope argument ignores reality.”
Yet Reynolds says Proposition 8 legal battles continue in California— evidence that a state court could still rule against the popular will of the people. “They’re trying to get Prop 8 overturned,” he says. Carlson, however, notes that the case in California is an argument over whether Proposition 8 could have been allowed in the first place. He notes California law can allow minor procedural changes to its constitution by a simple referendum like Proposition 8, but that substantive revisions need to first go through the legislature then to the people, much like Utah’s traditional marriage amendment.
“They’re not arguing to the California Supreme Court about samesex marriage being a fundamental right,” Carlson says. “They are arguing that that is a big change and needed to go through a different procedure.”
Carlson simply doesn’t see any precedent set by a court to somehow overturn an amendment to its own state constitution. He´s not the only one. Stanley Katz, a professor in public and international affairs for Princeton´s Woodrow Wilson School sees the situation as pretty clearcut. "You can´t have an unconstitutional constitutional amendment; that´s a contradiction in terms," Katz says. "The highest authority in America is popular sovereignty. And this norm [the amendment banning same-sex marriage and civil unions] has been authorized, for better or worse, by the people of Utah." Even for states without amendments that ban marriage for gays and lesbians like Utah has, Carlson says, evidence doesn’t show that states with legal protections for gays and lesbians have slipped down the slope to gay marriage, citing the examples of Nevada, Arizona, New Mexico and Colorado.
If the argument for changing the Constitution is abstracted, Carlson proposes, then there is an underlying rationale for conservatives opposing the Common Ground Initiative. “The undertone of what they’re saying is that if we stop discrimination against gay and trans individuals, we’ll have to treat them as equal people,” Carlson says. “Their message points about marriage are really points about what are we going to do with people we think are different.”
Ultimately Reynolds, of the Sutherland Institute, recognizes that for a court in Utah to overturn its own amendment would require a judge to act counter to the political beliefs of most Utahns. “Judges have a pretty good feel for the [political] climate,” he says. “But again, why even get to that point?”
“Our involvement on these issues was inspired by the fact that we have gay and trans people who are losing their jobs and are being denied access to their partners while in the hospital.”
Will carlson, policy director for Equality Utah