Guest Editorial: It’s time for a new word to define same-sex partnerships
The U.S. Supreme Court’s denial of Utah’s recent appeal means that same-sex couples can now legally marry throughout the state. This policy will afford important legal benefits and protections to gays and lesbians that have previously been enjoyed only by opposite-sex couples.
Utah state statutes dealing with marriage currently contain many references that conflict with a policy of same-sex marriage. For example, the heading of the entire area of the Utah Code dealing with marriage is entitled "Husband and Wife." Other phrases that occur frequently with regard to marriage are "man and woman" and "father and mother."
I have opened a bill file in the Utah legislature to review and revise the more than 700 references to marriage relationships contained in Utah Code, as needed to comply with the recent orders of the federal courts. Many of these revisions will be technical in nature, such as replacing the words "husband" or "wife" with "spouse."
Other changes are more complex and will require policy choices that recognize the inherent differences between same-sex and opposite-sex marriages, especially with regard to the bearing of children.
For example, current law provides that when a child is born to a married woman, the man to whom she is married is legally presumed to be the child’s parent. In rewriting this statute, the legislature will need to decide if, in this circumstance, the female spouse of a mother in a same-sex marriage will, or will not, be automatically presumed to have parental rights over the child.
Another example is that one of the requirements to create a valid contract for surrogacy is that the "intended mother" must show that she is unable to bear a child, or will suffer unreasonable health risks if she does. It seems that the legislature will need to craft an exception to this requirement if it intends to grant to male same-sex couples the opportunity to become parents through surrogacy contracts.
As I studied these types of statutes over the past few months, I realized that the biological fact that same-sex couples, by definition, will not produce children through natural reproduction calls for, in many cases, different regulations pertaining to same-sex marriages than to opposite sex-marriages, as shown by the above examples.
To mark these distinctions, I had proposed to call traditional marriage by its traditional name, marriage, and same-sex marriage by the name "pairage." In doing so, I was also responding to the views expressed to me by several of my constituents that same-sex unions and opposite-sex unions are conceptually different in some respects and so should be called by different names.
In the few days since I shared this terminology publicly, many citizens have told me that they found the term "pairage" offensive because it seemed to imply that it was legally inferior to traditional marriage. Although that was not my intention, I am sensitive to this sincere feedback that I have received from citizens, and so, to honor their requests, I will abandon any attempt to include this terminology in the legislation I am drafting.
From now on, where relevant, I will simply refer to the concepts as same-sex marriage and opposite-sex marriage, and where circumstances dictate, I will also distinguish between female same-sex marriage and male same-sex marriage.
I hope that the realization I have gained through my recent review of the complexities of marriage law will remain evident to the legislature and the citizens of our state.
To restate, this realization is that same-sex marriage and opposite-sex marriage are different from each other in certain ways, and that these differences should be acknowledged and observed in order to create rational policies to regulate the new marriage landscape ushered in by the federal courts.
Marriage equality does not mean marriage identity, and so, unlike in the realm of racial equality, there may be instances in which different regulations, rights and responsibilities can and should apply to each distinct type of marriage.
I welcome continued constructive feedback from citizens as the legislature incorporates the new and unique concept of same-sex marriage into Utah law.
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