This is an archived article that was published on sltrib.com in 2004, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
The nation's highest court has declined to join the debate over whether Jack can marry Dick and Jill can marry Jane. But that is not the end of it.
No, gentle readers, Americans are not destined to have domestic tranquility in the matter of civil unions for some time. Or, for that matter, civil tranquility in the matter of domestic unions.
All that happened Monday is that the justices of the U.S. Supreme Court issued a terse announcement from their neoclassic temple in Washington, saying that they will not hear an appeal challenging the ruling by the Supreme Judicial Court of Massachusetts that gay couples have a right to marry under that commonwealth's constitution.
Because the justices in Washington did not write anything beyond that, no one knows precisely why they chose not to intervene. But the court-watchers who interpret such auguries are convinced that the high court may not have taken the case because the appeal was based on an exotic legal theory, to wit, that the Massachusetts court had violated the U.S. Constitution's guarantee of republican state government.
These same prophets of the legal profession suggest that the U.S. Supremes are much more likely to weigh in when someone brings a case in which some other state refuses to recognize a gay marriage performed in Massachusetts. Presumably, that would bring the equal protection or full faith and credit clauses of the U.S. Constitution into play.
That kind of case could affect Utah, because last month voters here passed a constitutional amendment which makes explicit that “marriage consists only of the legal union between a man and a woman” and “no other domestic union,” by whatever name, “may be recognized as a marriage or given the same or substantially equivalent legal effect.”
In the Beehive State, that would seem to pre-empt gay marriage, unless some court somewhere were to rule that Utah must recognize a gay marriage performed somewhere else, say, in Massachusetts.
Of course, someone also could challenge the new Utah constitutional amendment directly.
We believe that marriage should be preserved in its traditional form as the union of one man and one woman. But we also believe, as a matter of fairness, that same-sex couples should be afforded certain rights now unavailable to them, through the vehicle of civil unions.
Because the second half of Utah's constitutional amendment seems, on the face of its plain language, to close that door, we opposed it.
The question of whether the new amendment forecloses civil unions will have to be decided by the courts. As with other issues of gay marriage, it is not a matter of if but when it is adjudicated.