The challenge of a 1987 Utah law prohibiting marriage by persons with AIDS appears imminent, according to a Salt Lake attorney.
"The law is unconstitutional and a violation of the civil rights of a person with AIDS - a person who can never get married, yet can never get rid of the disease," said Jeff Burkhardt, attorney for the Salt Lake AIDS Foundation.Burkhardt, a member of the AIDS Advisory Committee of the Utah Department of Health, may soon test the law's constitutionality himself when he represents in court an AIDS patient who's planning to get married.
He will be the only attorney to officially challenge the law since it went into effect.
The AIDS provision, Burkhardt explained, was part of a common-law marriage bill passed by the 1987 Legislature. Utah had not previously acknowledged common-law marriages.
Mary Carlson, director of community services for Planned Parenthood Association of Utah, followed the progress of the bill through committee hearings. She said the provision on AIDS was added at the very last minute, "and I don't think it received any discussion by the Legislature."
The 1987 bill recognizes the validity of a marriage that is not solemnized. Such a marriage would be deemed legal if a court or administrative order established that it had arisen out of a verbal or written contract between two consenting parties who:
-are capable of giving consent
-are legally capable of entering into a solemnized marriage
-have mutually assumed marital rights, duties and obligations
-hold themselves out as and have acquired a uniform and general reputation as husband and wife.
Homosexual and polygamist marriages are prohibited by the law, as are marriages where either partner is under age 14 - or has AIDS.
Burkhardt said that when the bill was codified, the AIDS provision was printed in section 30-1-2 - "marriages prohibited and void."
What this means is that no one with AIDS can enter into either a civil or common-law marriage. Such marriages, by law, are prohibited and would be declared void.
Ironically, however, Utahns are not required to have a blood (or AIDS) test before marrying.
Burkhardt said the law carries with it some serious ramifications.
For example, what happens if a person with AIDS marries and is put on his spouse's insurance policy? The attorney said the third-party carrier could take the case to court and under the statute might be able to have the marriage declared invalid.
The result: The AIDS patient would look to Medicare, a government medical plan supported by taxpayers.
Burkhardt said problems could also arise in a probate hearing if an AIDS patient illegally married and died without having a will.
A court could determine that the marriage was illegal and the widow would be denied his inheritance. Any children they had could be considered illegitimate.
The attorney has posed other questions with regards to the law.
Namely, what if a person contracts AIDS after the marriage? Is that marriage considered void, Burkhardt asks? What happens if a person who has no symptoms of the disease gets married and is not aware he has the virus? The good-faith marriage could be challenged in court.
Also, what is the definition of AIDS? It is continually changing and generally being expanded by the Centers for Disease Control. Which definition would be used in court?
In addition to being a violation of civil rights, Burkhardt says the law is "ill-advised and a bad public policy" in that it will do little to stop the spread of the fatal disease.
"AIDS patients who marry will have spouses who are informed of their AIDS status and can take precautions against exposure," he said. "In the single scene, persons are less likely to advise a one-time sex encounter of their status, thereby increasing the potential spread of the disease."
Carlson added, "The entire common-law marriage bill is a bad bill and needs to be looked at again by the Legislature. Other states are doing away with common-law statutes at the same time this state is initiating them."