Legal experts question gay-rights foes' fears

This is an archived article that was published on in 2009, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Utah's conservative-moral crusaders -- who are brandishing what they call "common sense" to rebuff the push from gay-rights advocates for "common ground" -- may be making a common mistake.

Their fears that granting any rights to same-sex couples inevitably leads to legalization of gay marriage are overblown, legal experts say.

The Constitutional Defense of Marriage Alliance -- led by Eagle Forum President Gayle Ruzicka, Sen. Chris Buttars and former Rep. LaVar Christensen -- and the conservative Sutherland Institute think tank both have issued rebuttals to Equality Utah's Common Ground Initiative, a legislative effort that would extend some legal protections to same-sex couples; make it illegal to fire or evict someone for being gay or transgender; and seek voters' approval to repeal Utah's Amendment 3 ban on civil unions.

Common Ground foes argue that extending rights to same-sex couples or recognizing sexual orientation as a protected class undermines Utah's constitutionally enshrined edict that marriage is only between a man and a woman. They warn that even seemingly benign gay-rights measures put Utah on a "slippery slope" toward a court ruling that would legalize same-sex marriage, like in California last year.

"I don't use this word lightly: That's false," says Clifford Rosky, a family law professor at the University of Utah's law school. "Utah courts can't ignore the Utah Constitution."

He adds, "In order to repeal Amendment 3 , two-thirds of the Utah state Legislature would have to vote to repeal and a majority of voters would have to vote to repeal. That's not likely to happen."

Rosky gives pro bono legal advice to Equality Utah and is a senior research fellow at the UCLA law school's Williams Institute on Sexual Orientation Law & Public Policy.

But even Lynn Wardle, a more conservative family law professor at Brigham Young University's law school, sees flaws in arguing against extending any legal protections to same-sex couples. Wardle supports Amendment 3 -- he provided legal advice during its crafting. But he says the amendment was "drafted very carefully to allow the extension of certain benefits -- just not a substantial equivalent [of marriage]."

In short, he says, "the principle that you can't give any particular benefit [to unmarried partners] without violating Amendment 3 is erroneous."

Wardle sees no breaching of Amendment 3 in one Common Ground bill, which already died in a Senate committee. Sen. Scott McCoy's wrongful-death bill would have allowed a cohabiting financial dependent -- besides a spouse, child or parent -- to sue when a breadwinner suffers a wrongful death.

But in committee, Ruzicka and Christensen testified that the proposed law would have put Utah on that slick slope toward same-sex unions.

"This bill treats same-sex partners as spouses," Ruzicka said. "That is a violation."

Wardle hasn't reviewed other bills in the Common Ground Initiative, but he objects to the measure that would seek to repeal the part of Amendment 3 that bans civil unions. About two-thirds of Utah voters approved the constitutional provision in 2004, and recent polls show residents remain firmly against civil unions.

Still, Wardle says, it's doubtful that Utah would stumble down California's "slippery slope." The California Supreme Court ruling legalizing gay marriage was overturned in November when voters approved Proposition 8.

"I don't think in Utah it's a grave threat because we already do have Amendment 3. It's well-drafted and provides protection," Wardle says. "The ultimate resort for the protection of [traditional marriage] is the people of Utah. If the Legislature were to start slipping down that slope and passing more and more marriage-equivalent bills, the people of Utah would respond."

Common Ground vs. Sacred Ground

What » A debate between Equality Utah and The Sutherland Institute over gay-rights legislation.

When » Feb. 19, 7 p.m., with a reception at 6:30 p.m.

Where » Sutherland Moot Courtroom, University of Utah law school, 332 S. 1400 East, Salt Lake City.