{"id":1510,"date":"2004-10-27T15:32:12","date_gmt":"2004-10-27T19:32:12","guid":{"rendered":"\/?p=1510"},"modified":"2004-10-27T15:32:18","modified_gmt":"2004-10-27T19:32:18","slug":"substantial-legal-effect","status":"publish","type":"post","link":"https:\/\/timesandseasons.org\/index.php\/2004\/10\/substantial-legal-effect\/","title":{"rendered":"“Substantially Equivalent Legal Effect”"},"content":{"rendered":"

Over at We Win, They Lose, Brent argues that Amendment 3 opponents are being disingenuous to suggest that the amendment could have a negative effect on unmarried couples<\/a>. Brent suggests that this is not the case, writing that<\/a> “I can draft a will leaving property to whomever I like. . . . Furthermore, the Amendment only prohibits government recognition of non-marital relationships (marriage being limited to one man and one woman) by the government, not by private employers or citizens. Thus, what opponents are saying is patently false<\/em>.” Brent’s position is understandable. However, my impression on reading the proposed amendment is that, while it might<\/em> not have a harmful effect on unmarried couples, it is probably impossible to conclusively tell (until the language is interpreted) that it won’t<\/em> have such an effect.<\/p>\n

The amendment language in question reads: “No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.”<\/p>\n

There are important questions of who<\/em> is doing the recognizing, who<\/em> is “giv[ing] . . .substantially equivalent legal effect” and what exactly that term means. Because these are not clear, I think there are instances where this phrase could go against private wishes. And because, in general, Constitutional provisions will trump private wishes, I don’t find Brent’s reasoning (that any problems can be avoided through simple contracting) persuasive. <\/p>\n

Imagine the scenario where I live with my girlfriend Mary. I draft a will that says “all of my property to Mary upon my death.” I then die.<\/p>\n

My sister wishes to contest the will. And so she goes to court, claiming that my will granting all property to Mary on my death was an unconstitutional attempt to create a “substantially equivalent legal effect” as marriage. Unless I’m married to Mary, she argues, I can’t enact a will that would create the “substantially equivalent legal effect.” It’s an argument that her attorney would probably make — it’s an argument that, as her advocate, he should<\/em> make.<\/p>\n

And is a grant of all property on death a “substantially equivalent legal effect” as marriage? Well, the spouse normally receives all property, right? So a colorable argument can be made that it is a substantially equivalent legal effect. And if it is, then it is unconstitutional. Will my sister win her case? That’s not certain, that’s for sure. But it’s definitely not outside of the realm of possibility, either. <\/p>\n

And in such a case, it’s not<\/em> clear that simple private drafting can always get around this. After all, in general, one cannot designate property in unconstitutional ways. (Thus, a gift of land “to be used as a school, so long as it is only attended by Whites” will be disallowed.)<\/p>\n

The bottom line is that constitutional provisions with vague language must be looked at carefully (remember the church position on the ERA?), and that such provisions can have broad-ranging effects that may or may not be what their drafters originally intended. The second part of Amendment 3 has the kind of vague language which could plausibly be read in ways that would affect non-married couples of all kinds. And given the existence of potentially dangerous ambiguity, I don’t see that Brent’s claim — “what opponents are saying is patently false<\/em>” — is necessarily the case.<\/p>\n

Now, I may be completely wrong on this. I’m no expert on Utah Trusts & Estates laws. If I’m misreading this, please let me know. (And let me also say that this is an off-the-cuff musing on this issue in its abstract form. This is not legal advice <\/strong>for any particular person. I don’t give legal advice on blogs — heavens, no — and so don’t take this as such). <\/p>\n

One last important side note: This is a legal-ish discussion of particular wording in the Amendment. Please, please don’t turn this into a general discussion of same-sex marriage. We have enough of those and to spare.<\/p>\n","protected":false},"excerpt":{"rendered":"

Over at We Win, They Lose, Brent argues that Amendment 3 opponents are being disingenuous to suggest that the amendment could have a negative effect on unmarried couples. Brent suggests that this is not the case, writing that “I can draft a will leaving property to whomever I like. . . . Furthermore, the Amendment only prohibits government recognition of non-marital relationships (marriage being limited to one man and one woman) by the government, not by private employers or citizens. Thus, what opponents are saying is patently false.” Brent’s position is understandable. However, my impression on reading the proposed amendment is that, while it might not have a harmful effect on unmarried couples, it is probably impossible to conclusively tell (until the language is interpreted) that it won’t have such an effect.<\/p>\n","protected":false},"author":5,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-1510","post","type-post","status-publish","format-standard","hentry","category-corn"],"jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/posts\/1510","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/users\/5"}],"replies":[{"embeddable":true,"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/comments?post=1510"}],"version-history":[{"count":0,"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/posts\/1510\/revisions"}],"wp:attachment":[{"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/media?parent=1510"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/categories?post=1510"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/tags?post=1510"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}