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Originally published on Advocate.com September 08 2004 12:00 AM ET


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News
2004-09-08

Utah's proposed marriage amendment may conflict with U.S. Constitution


Utah marriage amendment probably unconstitutional


An analysis of Utah's proposed state constitutional amendment to ban gay marriages raises the possibility of a conflict with the U.S. Constitution.



A new analysis of Utah's proposed state constitutional amendment to ban gay marriages raises the possibility of a conflict with the U.S. Constitution's Equal Protection Clause.

The analysis said it could be argued that the amendment "creates a classification of persons to whom the right to marry is not available." It also raises a question about the amendment's second part, which prevents any other union from being given the same or substantially equal legal effect as a marriage.

"The scope of that prohibition may be more precisely defined by Utah courts as they interpret the provision in the context of lawsuits that may arise," said the analysis, which will be available Tuesday online at the state Elections Office Web site, www.elections.utah.gov, and in printed form in October.

The proposed amendment, which goes before voters in November, reads, "Marriage consists only of the legal union between a man and a woman. No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent effect."

Supporters say the amendment would strengthen existing marriage law, adding that the second part is essential to prevent domestic partnerships, civil unions, or other so-called counterfeit marriages. Opponents say that wording could prohibit basic legal protections for unmarried couples, such as hospital visitation or inheritance rights.

The three candidates for attorney general--incumbent Republican Mark Shurtleff, Democrat Greg Skordas, and Libertarian Andrew McCullough--issued a joint statement of concern about the "overly broad language" they say would prohibit the legislature from extending "even the most basic partnership rights to unmarried couples."

Dani Eyer, director of the American Civil Liberties Union of Utah, said the new analysis shows concern about the amendment but is left "very vague." The amendment is "so poorly drafted and loose, there's not enough information to make a decision," Eyer said.

State senator Chris Buttars, the senate sponsor of the amendment and cochairman of the pro-amendment campaign Constitutional Defense of Marriage Alliance, said, "The wording is the combined work of a handful of legal constitutionalists. Every word is 'wordsmithed.' We knew it would come under this kind of fire. I believe we'll be sued.... I believe we'll prevail."


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