On election day in 2004-NOV, voters in 11 states passed an amendment to their state Constitution that restricted marriage only to the union of one woman and one man. Some went further and banned civil unions as well. Utah was one of the latter. Utah's Amendment 3 reads:
The first clause bans same-sex marriage. The second clause bans civil unions. Together, they appeared to ban any form of recognition of the relationships of loving, committed same-sex couples. Such couples are to be recognized only as "legal strangers" -- as roommates who simply lived together, without any acknowledgement of their relationships and without any protections for themselves and their children.
The amendment was passed by 66% of Utah voters. Similar amendments were all passed in the remaining 10 states by substantial majorities.
At the time that the amendments were voted upon, about 58% of American voters nationally opposed SSM. Utah has been and remains a very religiously and politically conservative state, partly because over 60% of its adults are members of The Church of Jesus Christ of Latter-day Saints -- the main Mormon denomination. A 2004 poll taken by the Center for the Study of Elections and Democracy at Brigham Young University revealed that 54% of Utah residents disapproved of any legal recognition of the relationships of same-sex couples, whether it consisted of same-sex marriage,or civil union. In 2013, that opposition has dropped to 29%! It is most unlikely that Amendment 3 would be passed if it were voted upon today, if we assume that the voters fully understood the scope of the amendment.
Surprisingly, Utah courts ruled in 2006 that Amendment 3 does not ban domestic partnerships. The court allowed Salt Lake City's limited domestic partnership program to continue.
Who has the authority to define marriage?
The U.S. Constitution very clearly assigns the authority to define whom may marry to the individual states -- not to the federal government as in most other countries, like Canada, the UK, New Zealand, most countries in Europe, etc. This was confirmed in 2013-JUN by the U.S. Supreme Court in its ruling for Windsor v. United States. Different states have set up different criteria for marriage. Some allow first cousins to marry even though it doubles the chance that the children of opposite-sex parents will have a major genetic disorder. States also differ in the minimum age for marriage, and whether younger couples can marry if they have parental permission. As of 2013-DEC-24, 18 states and the District of Columbia permit same-sex couples to marry; 32 states do not.
However, individual states do not have unlimited freedom to define who is eligible to marry. For example, in 1967, Florida and fifteen contiguous states in the American South East prohibited interracial couples from marrying. That year, the U.S. Supreme Court declared in Loving v. Virginia that interracial marriages were legal across the entire U.S. Today, there is a widespread belief that a ban on same-sex marriages violates the equal protection and equal process phrases of the U.S. Constitution's 14th Amendment, and that Utah's Amendment 3 is unconstitutional.
Some commentators predict that if and when:
that a case like Utah's "Kitchen et al v. Herbert et al" will make it all the way to the U.S. Supreme Court who will legalize SSM across the entire country, perhaps about the year 2020.
2013-MAR to DEC: The Utah federal court case "Kitchen et al v. Herbert et al.":
On 2013-MAR-25, three same-sex couple filed a lawsuit in the United States District Court for the District of Utah. It is titled "Kitchen et al v. Herbert et al". 7 Derek Kitchen is one of the six plaintiffs. Gary R. Herbert (R) is listed as the main defendant in his capacity as Governor of Utah. Three couples are seeking to have Utah’s Amendment 3 be declared unconstitutional because it violates the Due Process and Equal Protection clauses of the U.S. Constitution. 7 One of the couples had already been married in Iowa, and were seeking to have their marriage recognized in Utah. The other two couples were single and seeking to marry in Utah.
Hearings were held on DEC-04.
On 2013-DEC-20, federal judge Robert J. Shelby of the U.S. District Court for Utah issued a 53 page ruling declaring Amendment 3 to be unconstitutional under the Due Process and Equal Protection clauses in the 14th Amendment of the U.S. Constitution. 7 According to Wikipedia:
Thus, Utah became the 18th state to have attained marriage equality. Whether SSMs will continue to be available in the future is anyone's guess.
Niraj Chokshi and Carol Morello of The Washington Post said that the ruling:
Judge Shelby wrote in his ruling that the state had not shown that allowing same-sex marriages would affect opposite-sex marriages in any way. He wrote:
He also wrote:
Prohibiting loving, committed same-sex couples from marrying has other negative effects. Such couples are refused access to both state benefits, grants, protections and privileges of marriage. They are also cut off from 1,138 federal benefits available only to married couples.
He repeats a very common error: assuming that all same-sex couples are composed either of two gays or two lesbians. In reality, one or both partners in a same-sex relationship sometimes has a bisexual orientation.
This topic continues in the next essay
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