Utah Attorney General Jan Graham rejected a request that she join a brief opposing same-sex marriage. The brief was filed by the Nebraska Attorney General and 10 other state attorneys general in a case before the Vermont Supreme Court involving a claim for same-sex marriage.If Vermont (or any other state) legalizes same-sex marriage, it will create problems for Utah and all other states. Gay and lesbian couples will get married in Vermont and move to Utah (and other states), and demand that Utah (and all other states) recognize their homosexual "marriages" for purposes of marital status, inheritance, insurance, tax exemptions, benefits, etc.
Utah's Legislature passed a law in 1995 declaring that same-sex marriage is against strong public policy and will not be recognized. To protect that law, Utah's attorney general was invited to join the Nebraska amicus curiae brief. But Jan Graham refused.
In 1996, the Nebraska Attorney filed a similar "friend of the court" brief for a dozen state attorneys general in a same-sex marriage case in Hawaii. Attorney General Graham's office initially refused to join in that brief, but after Gov. Leavitt's office intervened, the Utah attorney general belatedly filed a letter with the Hawaii Supreme Court joining that amicus brief.
This time, despite a direct request from Governor Leavitt's office, Attorney General Graham refused to join the brief. She did not notify the Nebraska attorney general of her decision not to join until just hours before the brief was sent to Vermont, so there was no timely opportunity to provide her with input that could persuade her to change her mind.
There would have been no cost to Utah if our attorney general had joined the amicus brief. On the other hand, if the Vermont court legalizes same-sex marriage, it will be very expensive for Utah to defend and enforce its refusal to recognize same-sex marriages from Vermont.
Utah clearly has an interest in encouraging Vermont not to legalize same-sex marriage. If Utah had joined the brief, it would have strengthened the credibility of the arguments that it will violate the public policy of other states to recognize same-sex marriage and that legalizing same-sex marriage will create a divisive interstate dilemma that will interfere with cooperative federalism. Utah's support would have increased the persuasiveness and impact of the brief.
Three same-sex couples in Vermont have filed suit demanding that the state courts order the legalization of same-sex marriage. A state trial court barely rejected their claims, and the gay and lesbian couples appealed to the Vermont Supreme Court.
The Vermont Supreme Court is very liberal and in the past has ruled in favor of same-sex family relations. In Adoptions of B.L.V.B. and F.L.V.B., 628 A.2d 1271 (Vt. 1993), the Vermont Supreme Court allowed the lesbian partner of a biological mother to adopt the mother's child using the step-parent adoption procedures, so the child had two legal mothers.
A couple of other state attorneys general who signed the states' amicus brief in 1996 in the Hawaii case (including Dan Lundgren of California who is running for governor) also changed their minds and declined to sign the states' amicus brief in Vermont this year. It appears that the politics of opposing same-sex marriage has changed in the past two years.