Daniel J.H. Greenwood

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Don't Put Discrimination In the Utah Constitution

This November, voters in Utah will be asked to vote on a proposed Amendment to the Utah State Constitution that would

(1) state that "marriage consists only of the legal union of a man and a woman" and

(2) hold that "no other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect".

A. Discrimination Against Our Lesbian and Gay Fellow Citizens.

The intent of the amendment is clear: proponents and opponents alike agree that the Amendment is meant to perpetuate the existing pattern of religious and sexual-orientation discrimination in marriage, by banning same-sex domestic partnerships or marriages and preventing churches from performing them.

Marriage is a fundamental human right, so fundamental that the US Supreme Court has said that convicted murderers cannot be arbitrarily denied their right to marry (Turner v. Safley). If our lesbian and gay fellow citizens wish to marry, they should have the same right to do so as the rest of us.

This discriminatory intent alone makes the proposed Amendment unfair, immoral and unjust -- a truly extraordinay expression of invidious discrimination against a discrete minority of Americans.

B. Religious Discrimination.

The Amendment not only bars the state from performing same-sex marriages. It also seeks to bar churches from doing so regardless of their theology or beliefs.

Marriage is, for most of us, a deeply religious act. The American way of religious freedom requires that religious groups -- not state constitutions -- determine who is entitled to perform sacred rituals, enter into sacraments or be united in the eyes of God.

Some churches and synagogues believe that when Genesis reports God saying to Adam "It is not good for a person to be alone," it is teaching about all people, not just heterosexuals; that if God had meant homosexuals to marry persons of the opposite gender, He would have made them heterosexual; or that the fundamental principle that all humans are created in the image of God bars discrimination against homosexual couples. Others disagree.

In America, Biblical interpretation belongs in church, not the Constitution. It is no more acceptable for the state to bar churches from performing marriages for same-sex couples than it would be for the state to bar churches from baptizing certain people, to bar them from offering communion to minority groups, or require them to exclude certain citizens from the priesthood.

Amendment 3 puts the state in the position of deciding theology. That is simply wrong. And un-American.

C. Unpredictable and Extraordinary Effects on Children, Families, and Lesbian, Gay and Straight Couples.

The legal meaning and effects of the Amendment, however are more complex than its discriminatory intent.

Clause 1.

The meaning of the first clause, limiting marriage to “only” “legal union of a man and a woman,” is unclear. Although its proponents contend it is necessary to bar gays and lesbians from marrying in Utah (and perhaps polygamists, although the change in language from "one woman" to "a woman" makes that less certain), such marriages are already barred by statute.

Statutory changes are usually interpreted to have some meaning, not to be entirely pointless or purely discriminatory. It appears, therefore, that courts applying this clause would have to take "only” seriously: to bar everything else from marriage. No more love, strife, commitment, joint bank accounts, Saturday mornings in bed, sacraments and sanctification, and the like. Marriage consists only of legal union. Whether this can be done by Constitutional amendment remains to be seen.

Clause 2.

The second clause apparently bars domestic partnerships and common law marriage (gay or straight) from Utah. Again, its full effect is unclear, although its main effect will be on children and complex families with heterosexual parents (there are a lot more of them than lesbian domestic partnerships!). Here, however, the possible legal effects are frightening rather than amusing.

If interpreted literally, it seems likely that it would

and so on.

The Amendment would be not only a significant setback to attempts to obtain justice for gay and lesbian couples, but also

I hope you will join me in opposing this hateful and harmful proposal. The group spearheading opposition is The Don't Amend Alliance: Real Utahns Fighting Real Discrimination.

For more information on the The Don't Amend Alliance: Real Utahns Fighting Real Discrimination, the proposed Utah Marriage Amendment or how you can support the effort to defeat it, visit the Alliance's website at http://www.dontamendalliance.com or call them at 746-1314.