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A proposal to ensure the equal treatment of Utah's married gay couples in matters of adoption and foster-care placement failed on a tie vote Wednesday in a House committee.
HB234 died on the 5-5 vote after Republican lawmakers argued that the U.S. Supreme Court ruling that legalized same-sex marriage nationwide does not require Utah to grant gay couples any other marriage-related rights.
"It pertains only to marriage," said Rep. Merrill Nelson, R-Grantsville, the judiciary committee vice chairman and an attorney with the firm that does much of the legal work for The Church of Jesus Christ of Latter-day Saints. "It does not refer to a fundamental right to adoption or a fundamental right to foster."
Rep. LaVar Christensen, R-Draper, also an attorney, was similarly adamant and read aloud portions of the ruling that says religions and individuals have the right to continue to teach and advocate for the principles and "family structure they have long revered."
"We cannot be misled to think that this judiciary committee is somehow compelled as a matter of law to broaden, to expand, to extend," he said.
Christensen was the sponsor of Amendment 3, which in 2004 banned same-sex marriage in the Utah Constitution before it was overturned by federal courts in 2012.
Rep. Angela Romero, D-Salt Lake City, the sponsor of HB234, said the bill's aim was not to create any new laws, but was only an amendment that would bring Utah's existing laws in line with the Supreme Court's ruling.
The state, she said, could risk lawsuits if the Legislature fails to change the code.
"This is really about people and about children being loved," Romero said. "I have a lot of constituents who are very loving parents, and for us to deny them a right because of who they love is ridiculous."
Utah has already lost one lawsuit over the issue of equal parentage rights for gay couples.
Angela and Kami Roe sued after Utah's health department and office of vital records refused to issue the couple a birth certificate that named both women as parents of their daughter something a male husband automatically gets, even if he is not the baby's biological parent.
A federal judge sided with the Roes in July, saying Utah's position violated the couple's right of due process and equal protection guaranteed by the 14th Amendment.
The state opted not to challenge U.S. District Judge Dee Benson's ruling.
Advocates for Utah's gay, lesbian, bisexual and transgender community seemed unfazed by the committee's vote Wednesday, saying it would have no effect on their daily lives.
"Same-sex couples can still marry, foster and adopt on equal terms in Utah and across the country," Equality Utah Executive Director Troy Williams said. "However, it's disappointing that state code does not yet reflect the guarantees of the U.S. Constitution to all Americans."
But Utah could face further legal challenges if conservative district judges see the Legislature's failure to pass HB234 as an excuse to put state law ahead of the Constitution and a decision from the Supreme Court, said Paul Burke, a Salt Lake City gay- and transgender-rights attorney. "Today's action is nothing more than an invitation to unconstitutional mischief because the U.S. Constitution guarantees that all married couples whether gay or straight are entitled to equal treatment," said Burke. "The state of Utah cannot favor straight couples over gay couples in adoption or any other proceedings."
One Carbon County judge came close to stepping over that line in November, when he ordered state child-welfare officials to remove an infant girl from the care of her same-sex foster care parents.
In court papers, 7th District Juvenile Judge Scott Johansen said he believed "research has shown children are more emotionally and mentally stable" when raised by heterosexual parents, and that same-sex unions have "double" the rate of instability.
The comments drew a firestorm of national attention, including from Democratic presidential candidate Hillary Clinton, who expressed support for the women via Twitter, saying: "Being a good parent has nothing to do with sexual orientation thousands of families prove that."
Being a good parent has nothing to do with sexual orientationthousands of families prove that. https://t.co/xQLh25RAYR— Hillary Clinton (@HillaryClinton) November 12, 2015
Johansen's actions also drew a request for a Judicial Conduct Commission investigation, but he retired in December and it's not clear whether any action was taken.
Burke also disputes any characterization by lawmakers that the U.S. Supreme Court's marriage decision has no bearing on other marriage-related rights. One part of the consolidated case which considered rulings from three states represented by the 6th Circuit Court of Appeals specifically challenged a Michigan law barring gay couples from adoption. The court found such laws harm and humiliate children, Burke said,
Utah also defended its own ban on gay unions before a federal appeals court by arguing that marriage is primarily about raising children.
"Now these guys are claiming it has nothing to do with parenting and adoption," Burke said. "Absurd."