Salt Lake City Mayor Rocky Anderson's push to offer health-care benefits to domestic partners of city employees has gay marriage advocates and their opponents accusing each other of flip-flopping in their legal analyses of Utah's constitutional ban on gay marriage.
But one thing they do agree on is the issue will likely spark an ornery fight at the courthouse and the statehouse in the coming months.
If Anderson signs an executive order extending dental and medical benefits to nonmarried domestic partners, as he has promised to do before this November, opponents have threatened to file suit. Further complicating the matter, that legal fight may be rendered meaningless if one state lawmaker fulfills his promise to introduce legislation prohibiting Anderson's plan.
And as Anderson prepares to engage the fight, he has the backing of the majority of his constituents. A new Dan Jones & Associates poll for the Deseret Morning News and KSL-TV shows 54 percent of Salt Lake City residents favor Anderson's plan to extend health benefits to domestic partners of city employees. Still, showing the issue is controversial even in politically liberal Salt Lake City, a sizable number, 42 percent, oppose it.
The controversy over domestic partner benefits really erupted in Utah last year as voters considered Amendment 3. Then, the anti-gay marriage camp argued that Amendment 3 wouldn't prevent any company or government from extending health benefits to nonmarried dependents.
In contrast, gay marriage advocates said that an amendment provision reading "no other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect" would stop governments from extending benefits to domestic partners.
Fast-forward to 2005 and gay marriage advocates have changed their tune.
Scott McCoy, a gay attorney who led the opposition to Amendment 3 and is now a state senator, said he now believes current state law and Amendment 3 allow for benefits such as those proposed by Anderson.
McCoy counters accusations of flip-flopping by saying Amendment 3 folks have switched their story by complaining about Anderson's proposal.
"The Yes! for Marriage folks flat out said if a local city wants to offer domestic partner benefits, it can," McCoy said this week. "If Amendment 3 is just about marriage, I don't see this has anything to do with marriage."
Jane Marquardt, another gay attorney who is the current chairwoman of Equality Utah, agrees it is those anti-gay marriage advocates who have done the 180.
They were the ones who had the legal opinion saying "you can't plausibly argue that extending a few basic benefits would be prohibited by Amendment 3," she said.
Actually, what the Yes! for Marriage lawyers said was that, "the Legislature (or other government) can extend any benefits it wants, as long as it doesn't do it on the basis of a sexual relationship."
But Anderson's push is apparently designed around the sexual relationship. Anderson, also an attorney, told the Deseret Morning News he only wants to extend benefits to nonmarried same-sex and gay couples, and not open up benefits "to the whole universe" a group that would include other dependents, like siblings living together or an adult child and parent living under the same roof.
State Rep. LaVar Christensen, R-Sandy, also an attorney, maintains Amendment 3 does prohibit Anderson from extending benefits only to couples.
And even if a court ever ruled the amendment didn't prohibit Anderson from doing so, Christensen says he would introduce legislation prohibiting Salt Lake City from offering those benefits.
"Under current law, I do not believe the mayor has authority," Christensen said. "It's not because I'm trying to turn a deaf ear or hard heart toward anyone. We've debated it and adopted it. . . . Marriage between a man and a woman is the foundation of society."
Christensen said it would be different if Anderson wanted to open benefits up to "the whole universe" and allow every employee to pick one person to receive benefits.
"As I understand it, Mayor Anderson wants equality, regardless of sexual orientation. He wants to create a spouse equivalent under insurance benefits."
But not every backer of Amendment 3 shares Christensen's opinion.
Bill Duncan, director of the Marriage Law Foundation, a national group that supported Amendment 3 in Utah, said the city would "have to do something quite dramatic" before the benefits conflicted with the amendment.
"It's so clear that something has to be equivalent to marriage (to conflict with Amendment 3)," Duncan said. "These one or two things are not going to raise any Amendment 3 questions."
The city could, however, run into authority questions, and that would depend on whether state law defines who can be the beneficiary of public benefits, Duncan said.
While nothing currently in state code specifically states who cities can offer benefits to, the Legislature could create such restrictions, as Christensen has threatened, according to David Church, chief counsel for the Utah League of Cities and Towns.
The Legislature, after all, does have sweeping power over Utah's cities, he said.
"Cities' powers are derived from legislation, so the state Legislature can enlarge at their will what cities can and can't do," Church said.
In opposing Amendment 3 last year, Attorney General Mark Shurtleff predicted legal wrangling over what he called an unclear law. Even the Office of Legislative Research and General Counsel foresaw that courts and judges would have to determine what the amendment really meant. The office's legal analysis read, "the scope of that prohibition (on marriage equivalents) may be more precisely defined by Utah courts as they interpret the provision in the context of lawsuits that may arise."
But Christensen's statement that he will push for new laws "if somehow (Amendment 3) wasn't sufficiently clear" to thwart Anderson may make the legal wrangling a moot point. Three-fourths of the state lawmakers are Republicans. On top of that, many conservative lawmakers dislike Anderson.Give Given that, few, if any, think legislation stopping Anderson's benefit plan wouldn't pass by a healthy margin.