With the Oct. 6 decision/non-decision by the U.S. Supreme Court allowing the 10th Circuit Court of Appeals' verdict on same-sex marriage to stand, Utah supporters of the ruling are excitedly looking to the legal future of gay rights. The Utah Legislature will have its hands full this next session with a host of related bills. Through attorneys Paul Burke, Brett Tolman and John Mackay, Utah's gay community has put the Legislature on legal notice that it better behave itself.
But has the fat lady sung on the matter of same-sex marriage and related gay rights? For all intents and purposes, she has, at least for the states in circuit court districts upholding these laws. For a variety of reasons my guess is, regardless of further litigation, this genie is out of the bottle for good.
The Utah Legislature now faces several sensitive questions. Does it accept same-sex marriage as final and work to restructure all marriage- and family-related state laws? Does it accept same-sex marriage as final but, as it did with sodomy laws after Lawrence, leave current laws on the books untouched and create regulatory workarounds to address the new normal? Does it venture into the wild world of sexual politics and address the demands of activists who seek to pass the full agenda of the Human Rights Campaign standard-bearers?
Attorneys Burke, Tolman and Mackay argue that the Legislature do nothing less than accord the gay community every equal right possible. Well, not quite. For some unknown reason, these attorneys recently argued that the Legislature stop short of full equal rights for sexual orientation and gender identity. Though their rhetoric sounds like they are demanding full equal rights, their recommendation regarding nondiscrimination laws is anything but full.
Utah now lives with a post-Kitchen world of sexual politics. Is there anything about the 10th Circuit's Kitchen decision that would give the gay community pause to press forward for full equality under the law? If not, using nondiscrimination as an example, why not press for full coverage of the law? Why limit the reach of nondiscrimination to just housing and employment? Why not extend the proposed law's reach to public accommodations and beyond? Surely, State Senator Steve Urquhart, Utah's Republican champion of gay rights at the Legislature, is now without political excuse to push for full equal rights.
There is no justifiable reason for Utah's gay community to pull its political punches any more. With same-sex marriage should come changes to family law, especially adoption and reproductive services that allow gays and lesbians to pay for and receive children into their new families. Indigent people in need of transgender treatments and surgery could be covered by state Medicaid. There are literally hundreds of policies that could now be implemented on the basis of full and equal rights for gays and lesbians. What's to stop it all?
Indeed, there's nothing to stop it after the madness of accepting the reasoning that the definition of marriage includes any claim by two or more consenting adults. Indeed, even the future of polygamy is now unbridled under the law.
Actually, there is one policy that can stop the madness now that the definition of marriage is subject to the tragedy of commons and rendered meaningless: It could be time for Utah to get out of the marriage business completely. If marriage can mean anything and if there really is no credible research suggesting significant benefits to men, women and children, ipso facto, there is no state interest in marriage. So why not get out of the marriage business?
Of course, it's not a position I have supported. Then again, I've held (and still hold) the seemingly anachronistic idea that the definition of marriage has meaning and the state has a deep interest in it. But getting Utah out of the marriage business — leaving marriage as a personal or religious sacrament — would permit the Legislature to more prudently tackle the onslaught of ancillary "fundamental" rights with which it is about to be hit.
Paul Mero lives in Sandy.
