And the law of unintended consequences rises up in a somewhat unusual place.
Legal questions are starting to emerge -- along with serious uncertainties about personal relationships -- now that voters have supported amending the Utah Constitution to say that marriage exists only between a man and a woman. Newly passed Amendment 3 takes effect Jan. 1, but already Utah lawyers are exploring ways to employ this legal standard -- based on its second sentence, which prevents the legal recognition of any domestic union that is the same, or substantially equivalent, to a marriage.
Salt Lake attorney Mary Corporon recently filed a motion for a male client who contends that Amendment 3 makes it unconstitutional to enforce a court protective order that his former live-in girlfriend got from a judge. Corporon's client was charged with violating the order that was to keep him away from the girlfriend and the apartment they formerly shared. Violating a protective order is a class A misdemeanor punishable by up to a year in jail. "If you have two people who occupy the same space together, a man and a woman in a romantic relationship, and the court steps in and says, 'One of you gets to occupy the space you have and the other doesn't,' that begins to look like a marriage breaking up and the temporary protective orders issued in divorces," Corporon said.
Leaving aside the fact that Utah's ban doesn't even take effect for nearly two months, one wonders how many states will try to extend the effect of their shiny new laws to smite the ungodly heterosexuals among them. Or, more precisely, how many states will discover that there are many many people out there perfectly willing to use these imprecisely worded amendments to target those of whom they do not approve. Mind, in this case, it's purely a defense tactic, and it's almost certain to lose -- I would think that an order of protection is frankly nondenominational, relationship-wise. But imagine the fun a malicious person could have in a custody case involving a man and a woman who never got around to getting married. In a particularly bitter break-up, I would think that it would be entirely likely for the mother to say, "Well, this man should have no custodial rights whatsoever, because we were never married, and Amendment 3 prevents the state from recognizing any responsibility whatsoever." Or a man saying that, if the state says there was no relationship, then he has no responsibility to pay child support. To be sure, most of these arguments are likely to fail, eventually, because a relationship involving a child would for the most part sit outside that type of amendment's scope. However, one thing it would do is to outright ban "palimony" type suits; after all, alimony as such is an aspect of divorce.
After a few years of this type of misuse -- which will, by its very nature, be much more frequent than attempts by gays to marry in the face of an amendment saying that they can't -- it will be interesting to see how these states react. After all, you can't generally amend an amendment; all you can do is repeal and replace it.
Posted by iain at November 17, 2004 02:39 PM
