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Nine Republican state lawmakers and three Brigham Young University law school professors are pitting themselves against Attorney General Mark Shurtleff over Utah's proposed marriage amendment.
Sen. Dave Thomas says he wrote the group's letter as a sort of "legal analysis" to try to clear up confusion about Amendment 3, which goes before voters Nov. 2.
Quoting a series of so-called majority court decisions and his own readings of Utah law, Thomas concludes Amendment 3 would protect Utah families by defining traditional marriage and denying legal status to any other unions. He insists his letter is putting the amendment debate back on point.
"We've gotten away from what the real issue is: the issue of family and marriage and what it means," he said.
The letter from the 12 conservative attorneys is not unexpected. Nine were members of the Legislature and voted for the amendment in the waning hours of the 2004 Legislature. And BYU law Professor Richard Wilkins, another who signed the letter, helped amendment sponsor Rep. LaVar Christensen write it.
But the letter Thomas submitted to Utah newspapers late Friday as an opinion column also directly pits conservative lawmakers against Shurtleff, the incumbent Republican who is running for re-election.
Almost two months ago, Shurtleff, Democratic challenger Greg Skordas and Libertarian opponent Andrew McCullough issued a statement opposing the amendment. The three attorneys said they worried the second section of the amendment, which prohibits the state from granting any union "substantially equivalent status" to marriage, will hurt existing Utah families. They said it also would block lawmakers from extending hospital visitation, funeral planning or even protective orders to unmarried Utah couples.
Since that rare joint statement, Gov. Olene Walker has expressed reservations about the amendment. And the Utah State Bar's Family Law Section Executive Committee this month voted to oppose the change to Utah's Constitution.
Despite doubts about the second section of the amendment, Thomas' co-signers reject those concerns. He calls them "dubious legal arguments."
"I feel strongly that the positions put out by the attorney general candidates skewed the issue," he said Monday. "I don't think any of them did an in-depth legal analysis."
Don't Amend Alliance Director Scott McCoy says Thomas' letter is political rather than legal.
"They're not making any legal arguments. All they say, over and over again, is that nothing will happen. They never give any legal support for that argument," McCoy said.
Thomas took his letter only to lawmakers who voted for the amendment. He did not ask for the opinions of Democratic Salt Lake City Rep. Scott Daniels, a former 3rd District Court judge, or Murray Sen. Patrice Arent, a former assistant attorney general. And he didn't call the University of Utah law school to talk to constitutional scholars there.
Daniels questioned some of Thomas' legal reasoning. He says the continuing legal debate about the amendment points out a larger problem with the hastily drafted legislation.
"There are some very subtle constitutional questions that should have been considered before this amendment was put before the people," Daniels said. "These matters could have been discussed, this could have been worked out if they just would have brought it to the Constitutional Review Commission. But it's too late for that now. It's all or nothing."
The list of Republican lawmakers on Thomas' letter puts the attorney general in a tense situation if the amendment passes and he is re-elected.
Shurtleff declined to comment further on Amendment 3. In August, he wrote to lawmakers, "If Amendment 3 passes, I will fulfill my responsibility and defend it in court."
Thomas figures the attorney general will do his duty. "We've got a difference of opinion," he said. "The attorney general simply enforces the law. I have confidence that he'll do that."
Legal arguments against Amendment 3:
* Part Two will throw into question existing "common-law" marriages and civil unions legalized in other states.
* The second clause prohibits future lawmakers from granting any rights inherent in heterosexual marriage - such as emergency medical decision-making, inheritance and hospital visitation - to unmarried heterosexual or gay couples. And Utah's Cohabitant Abuse Act, which allows adults living together to file protective orders, could be impacted.
* Therefore, the amendment would disenfranchise gay citizens by blocking their access to the public process - an unconstitutional "Bill of Attainder."
* Amendment 3 could jeopardize domestic partner benefit packages provided by several Utah employers.
Legal arguments for Amendment 3:
* Florida's Supreme Court decided that gay couples do not have a constitutional right to live a homosexual lifestyle and can be blocked from adopting foster children to protect the "optimal family."
* Amendment 3 does not block unmarried gay or heterosexual couples from signing legal contracts outlining medical decision-making power and inheritance rights. Visitation is an individual hospital's policy. Protective orders for cohabiting adults will not be affected by the amendment.
* The Bill of Attainder doctrine is an antiquated concept not accepted by any court.
* Private employers in Nebraska, whose voters approved a similar constitutional amendment in 2000, have not been forced to drop domestic partner benefits.
Signatories to letter supporting Amendment 3
Sen. Dave Thomas, R-South Weber
Sen. John Valentine, R-Orem
Sen. Greg Bell, R-Fruit Heights
Sen. Lyle Hillyard, R-Logan
Sen. David Gladwell, R-Ogden
Rep. LaVar Christensen, R-Draper
Rep. Greg Curtis, R-Sandy
Rep. Mike Thompson, R-Orem
Rep. Stephen Urquhart, R-St. George
BYU Professor Richard Wilkins
BYU Professor Lynn Wadle
BYU Professor Scott Loveless