A group called Utah Equality has proposed a package of legislation meant to increase the rights of same-sex couples in Utah. The package has been presented against a backdrop of widespread intimidation directed towards supporters of marriage as the union of husband and wife, including churches.

One of the bills this group includes in its package (expanding eligibility for unmarried people to pursue wrongful death actions) is currently pending in the Utah Legislature. The most significant part of the package would repeal a provision of the Utah Constitution that prevents the creation of legal statuses—such as civil unions-- equivalent to marriage that have been understood as a prelude to redefining marriage in California and Connecticut.

Supporters of the package have presented this legislation as the only way for supporters of marriage to show they are acting in good faith. For instance, a recent article in the Los Angeles Times says: “If the LDS Church were to support McCoy [the legislative sponsor of the currently pending bill] it would show that it really does believe in love, compassion and equal rights. If it does not, the church's supposedly conciliatory stance would simply be one more obfuscation in support of truly bigoted intentions.” ¹

While there may be a particular measure included in the package that may not be objectionable taken in isolation , the sponsors of this package have precluded individual consideration of the ideas by creating a package of “bundled” measures and declaring an intention of “incremental advances” on gay rights while the “marriage dialogue” is “set aside . . . for a while .” ²

Don't be Fooled

Recent court decisions in other states have similarly made clear that providing benefits to same-sex couples, no matter how minor and even if accompanied by statement of intent meant to protect marriage, will be treated as evidence that the legislature does not object to redefining marriage .

In each of the State high court decisions mandating a redefinition of marriage (in Massachusetts, California and Connecticut), the majority opinions have pointed to the extension of benefits to same-sex couples in those States in support of its conclusion . ³ This was the case in Massachusetts even though the legislature had specified in one bill that “[n]othing in this act shall be construed so as to legitimize or validate a ‘homosexual marriage', so-called.” ⁴

Sound legal and public policy does not require the Utah Legislature to support legislation as a way of rebutting attacks on the integrity of defenders of marriage. If a measure is necessary it should be accompanied not by accusations of bad faith but by evidence of a need for that measure, including a showing that the measure's purposes cannot be accomplished in a way that provides no threat to marriage (such as by private contract).

Thus, Utah Equality describes the need for wrongful death legislation as “help[ing] families [of those killed as a result of negligence or malpractice] stay in their homes by removing existing barriers to inheritance and insurance.” ⁵ At a minimum, then, sponsors of the legislation should be able to show that (1) people are losing their homes because of the absence of the legislation and (2) that these goals could not be achieved through joint ownership of a home, life insurance policies or other private arrangements including wills, that are currently accessible to any person. These showings will require study and deliberation.

It is neither necessary nor wise for the legislature to endorse a package of legislation meant to change the State's sound public policy in regard to marriage.

1 Rick Jacobs, “Why We're Mad at the Mormon Church,” Los Angeles Times , December 8, 2008 at http://www.latimes.com/news/opinion/commentary/la-oew-jacobs8-2008dec08,0,3004487.story.

2 Steve Gehrke, “More Than Mischief: Are Recent Acts of Church Vandalism Tied to Bigotry?,” Salt Lake Tribune , November 24, 2008; Aaron Falk, “Gay Rights Battle Heads to Capitol,” Deseret News , December 10, 2008, B4; see also Kirk Johnson, “Gay Leaders in Utah Plan 5-Bill Attack in Legislature,” New York Times , November 11, 2008, A15.

3Goodridge v. Department of Public Health, 798 N.E.2d 941, 962 & 967 ( Mass. 2003); In re Marriage Cases, 183 P.3d 384, 428 ( Cal. 2008), Kerrigan v. Department of Public Health, 2008 WL 4530885, *15 ( Conn. 2008).

4 Mass. General Laws Ann. 151B §4; see Goodridge v. Department of Public Health, 798 N.E.2d 941, 977 ( Mass. 2003) (Spina, J., dissenting).

5 Equality Utah , “Common Ground Initiative” at http://www.equalityutah.org/CommonGroundInitiative.html.