From Deseret News archives:
Shurtleff stands by his criticism of Amendment 3
'Let's fix it' to withstand court challenge, he says
Shurtleff told the Deseret Morning News editorial board Thursday that he's the one who will have to defend the legislation. If it passes, he said, the amendment will be challenged in federal court.
"My concern here is let's fix it," Shurtleff said. "Let's pass one that I'm confident we can win."
Shurtleff said he became concerned about the amendment after speaking to the attorney general of Nebraska, whose similar constitutional amendment is being challenged in federal court based on its clause preventing relationships such as civil unions. Plaintiffs say that clause forever bars a group of citizens from seeking legal benefits from their state legislature.
Utah's amendment also has such a clause, though it's worded differently.
Shurtleff said Nebraska is the only state so far with a so-called "second part" and, significantly, is the only state facing a legal challenge.
"The people of Utah have the right to know our concerns," Shurtleff said, referring to himself and his two opponents, Democrat Greg Skordas and Libertarian Andrew McCullough, who issued a joint statement opposing the amendment.
Brigham Young University law professor Lynn Wardle is one of many attorneys consulted by Rep. LaVar Christensen, R-Draper, who sponsored the legislation. Wardle called the amendment's language "pretty good" — different from Nebraska's — and said the candidates' joint statement shows a "lack of understanding of the law."
"The language here is narrow," he said. "The Supreme Court has held that time and time again . . . marriage is an institution that is positive, it contributes to society, it gets people off welfare. If a state wants to protect and give it preference," that's legally defendable.
Christensen did not return phone calls for comment.
Shurtleff said the arguments over the amendment ultimately won't matter.
"It will end up in the U.S. Supreme Court," he said. "The only amendment that's going to matter is the U.S. Constitution."
In a wide-ranging interview, Shurtleff also discussed charges from his opponent Skordas that he spends too much taxpayer money on outsourcing and on defending cases that he isn't likely to win.
Shurtleff spoke specifically to the 2000 Census, in which Utah went to court after it narrowly failed to gain an extra congressional seat when its overseas residents — mostly missionaries for The Church of Jesus Christ of Latter-day Saints — weren't counted. The U.S. Supreme Court ruled against Utah.
In that case, Shurtleff said the state governor and lawmakers insisted on outside counsel because of the resources involved, adding that the money was well spent.
"That's 10 years of underrepresentation," he said. "I thought we were going to win."
E-mail: dbulkeley@desnews.com
