An attorney has cited Utah's recently approved constitutional amendment banning same-sex marriage in arguing against enforcement of a court protective order. Amendment 3 does not take effect until January 1, but lawyers are exploring ways to take advantage now of its prohibition of legal recognition of any domestic union that is substantially equivalent to a marriage.
Salt Lake City attorney Mary Corporon recently filed a motion contending that Amendment 3 makes it unconstitutional to enforce a court protective order against her client that his former live-in girlfriend obtained from a judge. Corporon's client was charged with violating the order that was to keep him
away from the girlfriend and the apartment they formerly shared. "If you have two people who occupy the same space together, a man and a woman in a romantic relationship, and the court steps in and says, 'One of you gets to occupy the space you have, and the other doesn't, that begins to look like a
marriage breaking up and the temporary protective orders issued in divorces," Corporon said.
Attorney Monte Stewart, cochairman of Utahns for a Better Tomorrow, which supported the amendment, said such arguments ultimately will fail. "Lawyers representing clients, especially in criminal cases, are obligated to throw up just about everything and anything they can think of," Stewart said. "That's just the nature of the system. As they throw these arguments up, one by one they will be rejected."
However, former Utah supreme court chief justice Michael Zimmerman said it is no surprise that Amendment 3 would be invoked in cases having nothing to do with same-sex marriage, and he expects more lawyers will test such theories. "Wholly apart from the civil rights issue, the troubling part is that second section," said Zimmerman, who opposed the amendment. "Never underestimate the creativity of lawyers as they look for ways to use it in situations where it wasn't anticipated.... Who knows the number of ways it could crop up."
Another potential impact could be on domestic-partner benefits. The University of Utah, which offers such benefits, is studying the issue but for now will continue to offer the benefits, said spokeswoman Coralie Alder. Dani Eyer, director of the Utah chapter of the ACLU, said she expects the amendment to come up in a number of "nuts-and-bolts lawsuits" about the scope of the amendment's second section. She said the court's duty in such cases is to "narrowly interpret the constitution...but it may arise that the amendment is problematic."