The Legal Effect of Utah’s Marriage Amendment

Here is a legal analysis demonstrating why, arguments to the contrary, Utah‘s marriage amendment is sound. To read a more detailed analysis with footnotes, go to

Amendment Three, a proposed amendment to the Utah Constitution provides:

Marriage consists only of the legal union between a man and a woman. No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.

The amendment contains a single concept in two parts. The first sentence explains what legal marriage is in the state and the second describes what it is not.

Contrary to the claims of the “Don’t Amend Alliance,” Amendment Three is actually a simple and straightforward response to a very real legal problem-the effort to gain a redefinition of marriage through court decrees and to enforce the new definition in other states. Amendment Three will not affect arrangements made by private individuals and organizations. It will not invalidate existing rights or prevent extension of benefits to individuals based on criteria other than a sexual relationship.

Common Law Marriages

Utah’s statute recognizing common law marriages specifically requires parties to hold themselves out as “husband and wife.” Utah Code Annotated 30-1-4.5. This does not contradict Amendment Three which provides that the legal definition of marriage in the state is the “union between a man and a woman.” Amendment Three does not say anything about the distinction between statutory and common law marriage and thus cannot be read to abolish common law marriage or any of its rights or protections.

Cohabitant Abuse Act

The Cohabitant Abuse Act includes four independent factors by which a person can be identified as a “cohabitant” for purposes of qualifying for a protective order in the event of abuse. The final factor is that the individual “resides or has resided in the same residence as the other party.” Utah Code Annotated 30-6-1(2)(e). A same-sex couple living together is covered by this portion of the definition regardless of whether they are given any legal status as “spouses.” In addition, the act provides in subsection (2)(b) that a “cohabitant” includes any person “living as if a spouse of the other party.” The “as if” language makes clear that, even if a cohabitant is not a spouse, he or she is a person covered by the act. This does not give that person any legal recognition that would be prohibited by Amendment Three; it merely identifies a covered cohabitant.

Health Insurance and Other Benefits

Amendment Three will have no effect on private employers who choose to offer benefits to same- or opposite-sex partners of their employees. Not one private employer or organization would be affected in any way by Amendment Three. The language of the amendment is clear. It provides that a legal status (“domestic union”) cannot be recognized by the State of Utah “as a marriage” or “given the same or substantially equivalent legal effect.” Since private entities have never been able to define marriage for legal purposes, they cannot give “legal effect” to a relationship “as a marriage.” Private individuals and organizations can give benefits to married couples. Private individuals and organizations are also free (both now and after the passage of Amendment Three) to give any other benefits to other individuals or relationships as they see fit.

Future Legislative Extension of Benefits

Amendment Three will have an effect on future legislatures, but not the one that the “Don’t Amend Alliance” claims. Amendment Three would prevent the legislature from creating a “substitute” for marriage. But, the amendment would have no effect on a legislative decision to extend identified benefits to unmarried persons. For example, while the legislature could not establish a “domestic partnership” that (like marriage) allowed partners to make reciprocal medical decisions, the legislature could provide that any person can appoint any other person to make medical decisions on their behalf.

Wills, Trusts and Other Legal Instruments

Amendment Three merely prevents the creation of a new status for unmarried couples. It does not have any effect on individual choices regarding whom to name as a beneficiary in a will or a similar legal document. Those decisions have never been affected by the definition of marriage or the lack of an alternative status. Now (and after the amendment is passed), a person can leave property to anyone that person wishes whether or not he or she is married to that person. This understanding of the amendment is strengthened by the fact that Utah Code Annotated 30-1-4.1, which was enacted by the same legislature that approved Amendment Three, said that Utah’s definition of marriage and prohibition of quasi-marital statuses will not “impair[] any contract or other rights, benefits or duties that are enforceable independently of this section.”

Court Powers

Utah courts would be prevented by Amendment Three from creating a new status for unmarried couples or ordering the legislature to do so (as the Vermont Supreme Court did in 1999). Otherwise, the powers currently provided to courts would be completely unaffected by the amendment.