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Before it even goes into effect, Amendment 3 has become fodder for the courts.
Attorney Mary Corporon filed paperwork Wednesday arguing the marriage-sanctifying language of the amendment should clear a client of charges he violated his ex-girlfriend's protective order.
Corporon apparently is the first Utah attorney to cite the new marriage amendment - which will be added to Utah's Constitution on Jan. 1. Hers is an untried legal strategy that could throw into question annulment and common law marriage settlements, as well as protective orders.
Corporan argues that the amendment nullifies the girlfriend's legal standing regarding property rights in the unmarried couple's December 2003 domestic dispute.
Her claim isn't the ideal test case some were hoping would stem from Utah's amendment. But no one believes Corporon's interpretation of the voter-approved law will be the last case.
Most family law specialists and civil rights advocates are watching for other legal fallout.
"We're trying to pick ourselves up off the ground. It's too soon to know," said Jane Marquardt, chairwoman of the Don't Amend Alliance Oversight Committee and incoming board chairwoman of Equality Utah. "We're still trying to figure out what it means."
Voters in 11 states, including Utah, approved constitutional amendments defining marriage on election day. Louisiana and Missouri voters passed marriage amendments earlier this year. Four other states - Alaska, Hawaii, Nebraska and Nevada - already had amendments on the books. A federal judge overturned Louisiana's amendment. And the American Civil Liberties Union has challenged Nebraska's amendment as an unconstitutional obstacle blocking the gay community's access to that state's political process.
Given those court challenges already under way, legal experts say Utah's amendment is unlikely to be challenged in a precedent-setting civil rights case. But the amendment's legal fallout could be debated on a case-by-case basis.
"We were told the amendment would not interfere with a couple's efforts to acquire marriage-like rights and privileges one at a time, on a contract basis," said Utah ACLU Director Dani Eyer. "We'll see whether that's true. If there is any deterrent to that, I think that's where the lawsuits will come."
Attorneys are waiting for several scenarios. In one, Utah companies that offered health benefits to their employees' domestic partners could discontinue those programs. If a zealous family member challenges a gay couple's will or medical power of attorney agreements, a claim of lost rights could be made. Or, if lawmakers use the amendment as a reason to reject Gov.-elect Jon Huntsman Jr.'s proposal for legislation establishing "reciprocal beneficiary" rights for cohabiting adults with shared economic interests, that could lead to a lawsuit.
Corporon's strategy uses the amendment - which she opposed as a member of the political issues committee Utah Lawyers for Sound Constitutional Amendments - for a different purpose.
"I'm not doing this because I have an ax to grind. I'm just representing my client," she said. "In an odd way, this amendment creates litigation that helps some parties and hurts some parties. My client has been charged with a crime. There may be a constitutional basis not to have him convicted."
She argues protective orders essentially grant property rights to the applicant by blocking one partner's access to an apartment or home. Corporon says such de facto property rights are like those conferred on married couples. And since Amendment 3 blocks the state from granting any other relationships, "substantially equivalent" status with marriage, she says the charges against her unmarried client should be dismissed.
She suggests the amendment might also be used to nullify settlements stemming from court annulments, paternity suits or common law marriages.
"It's unleashed the whirlwind into family law," Corporon said. "The practice of law is having the Legislature give you 25 or 30 words and then trying to figure out how that applies to everything it might apply to. Some might call it manipulation. But that's what the entire legal system is about."