The uneasy truce between gay-rights organizations and conservative lawmakers in Utah could fracture and crumble, depending on the fate of two same-sex marriage cases before the Supreme Court.
I am convinced that the Defense of Marriage Act (DOMA) and California’s Prop 8 will be struck down or invalidated by the high court. I don’t think it will go as far as some hope -- making bans on same-sex marriage unconstitutional across the United States. But, I do think we will see the court rule on these hot-button issues in favor of gay-rights activists. Even if the SCOTUS punts on the issue and decides to not rule on Prop 8, that means a lower-court ruling striking it down would prevail.
If that happens, I worry about the future of gay rights in Utah. Why? Look no further than our Republican-dominated legislature.
If DOMA and Prop 8 fall, the response from Utah’s Capitol Hill could be reactionary and heavy-handed.
Consider the fight over guns during this last session. While Washington is simply talking about instituting reasonable restrictions on firearms, some Utah lawmakers tried to subvert the Supremacy Clause in the Constitution by making Utah’s gun laws predominant over the feds.
What do you think will happen if same-sex marriage gets a win at the Supreme Court? Prop 8 is something a lot of Utahns and the LDS Church poured time and effort and money into passing. If it’s ruled invalid, there will be a lot of hurt feelings in Utah, to say the least. And, hurt feelings can translate to anger -- and angry lawmakers are not reasonable lawmakers.
The “we will show the feds who’s boss” mentality on the Hill does not bode well for groups like Equality Utah.
Yes, a proposed statewide anti-discrimination law that included sexual orientation made it out of committee for the first time ever -- which was a big win for gay-rights groups. Yes, a number of cities have already passed similar anti-discrimination measures. But that will likely be the apex in Utah for some time.
As my UtahPolicy.com colleague Bob Bernick previously reported, the LDS Church seems to be backing away from its support of non-discrimination measures passed by a number of cities and counties. That’s always been the trump card for groups like Equality Utah. Church support of those measures has blunted any criticism and convinced reluctant lawmakers to vote in favor of them. Bernick says many rank-and-file members of the Church have complained about how those non-discrimination measures affect them -- either their businesses or rental properties they may own. While the Church likely won’t actively work against the existing ordinances, backers probably can’t count on their support in the future, either.
It’s hard to say what kind of backlash we might see from the Hill. I would guess there will be an effort to repeal existing anti-discrimination laws -- something then-Sen. Ben McAdams was able to stop a few years ago. Most likely, we won’t see any progress on a statewide anti-discrimination law for a number of years.
Utah is already being sued by some gay and lesbian couples, saying the state should have to recognize their marriages that are legal in Iowa. If same-sex marriage is made legal in California, as well, it’s not hard to imagine a scenario in which Utah legislators would feel compelled to respond.
One thing gay-rights organizations have going in their favor is that lawmakers won’t be on the Hill when a ruling comes down. There will be a little “cooling off” period before legislators can react. The ruling is likely to come down in June, a full six months before a new session begins.
Don’t think this is just idle speculation. Equality Utah’s board of directors and advisers have considered what a ruling against Prop 8 or DOMA would mean for them. The group says it’s impossible to predict what sort of response we will see in Utah, but executive director Brandie Balken understands the reality of the current situation here. “We know that regardless of the rulings in D.C., it will still be legal to discriminate in housing and employment based on real or perceived sexual orientation and gender identity in Utah.”
On a personal note, I was prepared for my own wedding last weekend. It wasn't lost on me the relative ease I’ve been afforded because my chosen partner is a member of the opposite sex. Malissa and my special day is flavored with a hint sadness because so many people who are near and dear to us are denied this sort of celebration and all of the resulting benefits simply because the government has decided that their relationship is somehow “wrong.”
If gay-rights advocates get a win in Washington, it’s likely to translate into nothing more than a zero-sum game in Utah.