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In re Gestational Agreement

Supreme Court of Utah

August 1, 2019

In re Gestational Agreement N.T.B, J.G.M., D.B., and G.M., Petitioners and Appellants

          On Direct Appeal Fifth District, St. George The Honorable Jeffrey C. Wilcox No. 162500035

          Edwin S. Wall, Damian E. Davenport, Salt Lake City, for petitioners and appellants

          Sean D. Reyes, Att'y Gen, Tyler R. Green, Solic. Gen., Brent A. Burnett, Asst. Solic. Gen., Salt Lake City, for amici State of Utah

          Chief Justice Durrant authored the opinion of the Court, in which Associate Chief Justice Lee, Justice Himonas, Justice Pearce, and Judge DiReda joined.

          Due to her retirement, Justice Durham did not participate herein; and District Court Judge Michael D. DiReda sat.

          Justice Petersen became a member of the Court on November 17, 2017, after oral argument in this matter, and accordingly did not participate

          OPINION

          Durrant, Chief Justice

         Introduction

         ¶1 This appeal comes to us unopposed. A married couple, both men, wish to become parents. The couple entered into an agreement with a woman and her husband to have the woman act as a gestational surrogate, carrying a fertilized embryo that contains the genetic material of one of the couple. In Utah, by statute, this type of "gestational agreement" "is not enforceable" unless it is "validated by a tribunal."[1] A court "may issue an order validating the gestational agreement" "only on finding that" certain conditions are met, one such condition being that "medical evidence" must be presented "show[ing] that the intended mother is unable to bear a child or is unable to do so without unreasonable risk to her physical or mental health or to the unborn child."[2]

         ¶2 The intended parents, prospective gestational mother, and her husband (collectively, Petitioners) filed a joint petition, pursuant to the statute, requesting that the district court validate their gestational agreement. The court denied the petition, reasoning that the statute's use of the words "mother and her plainly refer to a woman," and concluding that because "neither of the legally married intended parents are women the Court must deny their petition." Petitioners appealed, and the court of appeals certified the case to us.

         ¶3 Petitioners argue, first, that the statute, as interpreted by the district court, violates the Uniform Operation of Laws provision of the Utah Constitution, as well as the Due Process and Equal Protection Clauses of the United States Constitution. They also make a statutory interpretation argument, asserting that the word "mother" should be interpreted in a gender-neutral way to mean "parent." The State of Utah has submitted an amicus brief agreeing with Petitioners' second argument and urging us to interpret the statute in a gender-neutral fashion so as to avoid the constitutional questions. The State relies on a statutory rule of construction instructing courts to interpret a "word used in one gender [to] include[] the other gender" when doing so would not be "inconsistent with the manifest intent of the Legislature," or "repugnant to the context of the statute."[3] According to the State, this rule of construction requires us to read the word "mother" as "father" or "parent."

         ¶4 But Petitioners' and the State's proposed statutory interpretation is "inconsistent with the manifest intent of the Legislature" and "repugnant to the context of the statute."[4] Their suggested reading would effectively nullify the requirement that an intended mother show medical evidence that she is unable to bear a child altogether or without serious risk of harm to her or the child- an action that would undercut the legislature's intention. Additionally, their proposal contradicts provisions within the Utah Uniform Parentage Act (Act)[5]-the act encompassing the gestational agreement statute-that explicitly separate "mother" and "father" into distinct gender-specific terms. Because Petitioners' and the State's proposed interpretation is inconsistent with the manifest intent of the legislature and repugnant to the context of the statute, we are statutorily precluded from applying the suggested rule of construction. We therefore hold that the district court's interpretation is consistent with the manifest intent of the legislature and thus address the constitutional challenge to the statute.

         ¶5 Under the district court's interpretation, the intended mother requirement precludes married same-sex male couples from obtaining a valid gestational agreement-a benefit statutorily linked to marriage. Petitioners argue that recent United States Supreme Court precedent precludes states from denying similarly situated same-sex couples marital benefits afforded to couples of the opposite sex, [6] and the State does not oppose this argument. Accordingly, we hold section 78B-15-803(2)(b) unconstitutional. We further hold that the unconstitutional subsection should be severed, leaving the remainder of the statute intact, because doing so would not disrupt the overall operation of the Act or undermine the legislature's intent in enacting the statute. We therefore reverse and remand for further proceedings consistent with this opinion.

         Background

         ¶6 Petitioners N.T.B. and J.G.M. (Intended Parents) are a married same-sex male couple. Petitioners D.B. and G.M. are an opposite-sex married couple who entered into a written gestational surrogacy agreement with the Intended Parents. The four individuals filed a joint petition requesting that the district court validate their agreement, in accordance with the statutory scheme contained in Utah Code sections 78B-15-801 through 809, the provisions of the Utah Uniform Parentage Act dealing with gestational agreements. After reviewing Petitioners' joint memorandum in support of the petition and holding a telephonic hearing on the matter, the district court issued an order denying the petition.

         ¶7 In its order, the district court expressed "concern[] about the language of" Utah Code section 78B-15-803(2)(b), which requires, as a prerequisite to court approval, the court to find that "medical evidence shows that the intended mother is unable to bear a child or is unable to do so without unreasonable risk to her physical or mental health or to the unborn child." The district court noted that Petitioners had "filed a well written and researched" memorandum supporting their petition, and had, at the hearing, "presented additional well-reasoned arguments as to why the Court should interpret the above statutory language in a gender neutral fashion." The district court went so far as to note that "Petitioners' reasoning is sound," but nevertheless concluded that it could not "say that the legislature intended [Utah Code section 78B-15-803(2)(b)] to be gender neutral." Instead, the court concluded that "the word[s] mother and her plainly refer to a woman," and, accordingly, found itself "bound to apply the statute as written." The court concluded that, because "neither of the legally married intended parents are women," it "must deny their petition."

         ¶8 The Petitioners appealed, again unopposed. Before the court of appeals set a briefing schedule, Petitioners moved for summary disposition under rule 10(a)(2)(B) of the Utah Rules of Appellate Procedure, seeking reversal on the basis of "manifest error." The court of appeals denied the motion, concluding that "the outcome [Petitioners] request requires statutory interpretation and is a matter of first impression," making summary disposition inappropriate. The court of appeals then certified the case to this court. As we further discuss below, we have jurisdiction under Utah Code section 78A-3-102(3)(b).

         Standard of Review

         ¶9 The Petitioners raise two issues on appeal: first, whether the district court misinterpreted the applicable statute by failing to "give [it] a gender neutral reading," and second, whether, under the district court's reading, the statute is unconstitutional under either the state or federal constitution. The proper interpretation of a statute and its constitutionality are questions of law that we review for correctness.[7]

         Analysis

         ¶10 Petitioners first argue that the district court misinterpreted the Utah Code by failing to read the statute in a gender-neutral way in order to avoid constitutional concerns. The State agrees with Petitioners and urges us to interpret "mother" to mean "father" or "parent," relying on our rules of statutory construction for support. Employing our rules of statutory construction and the canon of constitutional avoidance to construe the statute in a gender-neutral manner is inconsistent, however, with the manifest intent of the legislature and is repugnant to the context of the statute. We therefore interpret "mother" in section 78B-15-803(2)(b) of the Utah Code to mean "female parent," thereby compelling a constitutional analysis of the statute. Because a plain reading of section 78B-15-803(2)(b) works to deny certain same-sex married couples a marital benefit freely afforded to opposite-sex married couples, we hold the statute violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment, under the analysis set forth in Obergefell.[8] We likewise hold that section 78B-15-803(2)(b) is severable from the Act.

         I. We Have Jurisdiction to Hear This Case

         ¶11 Before reviewing Petitioners' arguments, we must first address the question of jurisdiction. As noted above, this case comes before us in a unique posture. By statute, all parties must jointly file a petition with the district court in order to validate a gestational agreement. Utah Code expressly states that the court may issue an order validating a gestational agreement only on a finding that, among other things, "all parties have voluntarily entered into the agreement and understand its terms."[9] The entire proceeding is therefore predicated on the complete agreement of the relevant parties; no adverse party may exist. Indeed, no respondent participated in the proceedings before the district court in this case and none appears before us now on appeal.[10] So by statutory scheme, there is no controversy between adverse parties before us.

         ¶12 Ordinarily, the lack of adversariness present here would raise constitutional questions of justiciability. The Utah Constitution vests the courts with the "judicial power of the state, "[11] and therefore "we are constitutionally limited to wield only 'judicial power.'"[12]This "judicial power . . . is generally understood to be the power to hear and determine controversies between adverse parties."[13] Thus, generally, in "the absence of any justiciable controversy between adverse parties, the courts are without jurisdiction."[14] Stated differently, "judicial power" in Utah has traditionally been limited to the adjudication of disputes, and where no dispute between opposing parties exists, the court is without jurisdiction. Because no dispute between opposing parties is present here, we normally would dismiss this case for lack of jurisdiction.

         ¶13 But while the gestational agreement statute certainly does not fit the traditional principles of the "judicial power"-in that it precludes a controversy between adverse parties-adversariness does not completely define the scope of our constitutional power. Certain functions that our courts perform may be both entirely non-adversarial and still appropriately fall within the "judicial power," by virtue of the fact that these functions were intended by the framers of our constitution to be included in the constitutional grant to the judiciary. We believe that the validation of gestational agreements fits within this category because the founders intended adoption-or more specifically, the termination or creation of parental rights-to be a substantive category over which Utah courts had historical power to preside, notwithstanding the absence of a controversy between adverse parties.

         ¶14 A review of the history of Utah adoption statutes around the time of the framing reveals that early adoption proceedings, like gestational agreement proceedings today, generally required the joint consent of both the adoptive parents and the biological parents before a court could create a legally enforceable adoption. In 1884, a law was passed in the Utah Territory that allowed for the adoption of children through the mutual consent of the parties involved. It provided that the original parents or guardians "may make a statement in writing before the probate judge of the county . . . that he, she or they, voluntarily relinquish all right to the custody of, and power and control over such child."[15] Additionally, "the person desiring to adopt such child" had to make a written statement that "he or she freely and voluntarily adopt[ed] such child . . . with such limitations and conditions as shall be agreed upon by the parties."[16]The probate judge was then required to hold a hearing and "render a decree . . . in accordance with the conditions and stipulations of [the parties' agreement]," unless the judge found that "such proceedings are not for the best interest of the child."[17] In this territorial regime, courts were apparently expected to preside over a non-adversarial hearing, and make a judgment in the face of-and independent of- an agreement brought to it by the parties. Thus, before the Utah Constitution was adopted, courts apparently had power to preside over non-adversarial adoption proceedings.

         ¶15 Similarly, in 1898, shortly after the Utah Constitution was adopted, the Utah legislature codified a new adoption statute establishing a non-adversarial statutory scheme for adoption cases. The statute provided that

[t]he person adopting a child and the child adopted and the other persons whose consent is necessary, must appear before the judge of the district court of the county where the person adopting resides, and the necessary consent must thereupon be signed and an agreement be executed by the person adopting to the effect that the child shall be adopted and treated in all respects as his own lawful child.[18]

         The judge was then required to "examine all persons appearing before him . . . and if satisfied that the interests of the child will be promoted by the adoption, [was required to] make out an order declaring that the child shall thenceforth be regarded and treated in all respects as the child of the person adopting."[19] Like the territorial regime, this statute required a judge's approval of a mutually-consented adoption agreement in order for an adoption to be legally binding; no adverse party was contemplated.

         ¶16 Both the 1884 and 1898 statutes suggest that the founders of the Utah Constitution likely intended the grant of "judicial power" to include, in addition to the power to hear and decide controversies between adverse parties, the substantive power over the termination and creation of parental rights in non-adversarial matters. These statutes show that both shortly before and directly after the adoption of the Utah Constitution, Utah courts frequently presided over non-adversarial hearings involving the termination or creation of parental rights. These statutes also show that the courts had sufficient power to participate in proceedings that lacked a dispute between opposing parties. Given the prevalence of this historic function of the court, the founders more than likely understood the "judicial power" grant provided in our constitution to include the power to hear such non-adversarial proceedings. Thus, we cannot say, at least with respect to the termination and creation of parental rights, that such non-adversarial proceedings are outside the scope of our "judicial power." Rather, the judicial power includes the power to hear non-adversarial proceedings when these proceedings involve parental rights.

         ¶17 Here, the validation of gestational agreements falls within our courts' power over the creation and termination of parental rights. Like adoption proceedings, the validation of a gestational agreement effects a change in parental rights. If a gestational agreement is not validated as set out in Utah Code section 78B-15-803, then "the parent-child relationship is determined as provided in [Utah Code sections 78B-15-201 through 204], "[20]which provides that the woman who gave birth to the child, i.e., the gestational mother, shall be considered the mother and the parent of the child.[21] But with a valid gestational agreement, the intended parents can require the court to issue an order that "confirm[s] that the intended parents are the parents of the child" after the birth of the child.[22] Thus, the gestational agreement statute both creates and terminates parental rights.

         ¶18 Because the validation of a gestational agreement involves the termination and creation of parental rights-a substantive power intended to be included in the constitutional grant of judicial power to the courts-it is appropriate for our courts to participate in their validation, despite the lack of adversariness in gestational agreement proceedings.[23] We therefore hold that the traditional principle of adversariness in our justiciability jurisprudence does not apply to the creation and termination of parental rights.[24] Accordingly, we have authority to hear Petitioners' non-adversarial case on certification from the court of appeals, pursuant to Utah Code section 78A-3-102(3)(b).

         II. The Legislature Intended "Mother" to Mean "Female Parent" in Utah Code Section 78B-15-803

         ¶19 "When interpreting a statute, it is axiomatic that this court's primary goal is to give effect to the legislature's intent in light of the purpose that the statute was meant to achieve."[25] It is well established that "the best evidence of the legislature's intent is 'the plain language of the statute itself.'"[26] Therefore, "we assume, absent a contrary indication, that the legislature used each term advisedly according to its ordinary and usually accepted meaning," and "we presume[] that the expression of one [term] should be interpreted as the exclusion of another."[27]

         ¶20 On that basis, we assume, "absent a contrary indication," that the use of the word "mother" within Utah Code section 78B-15-803 was used "advisedly," and to the exclusion of other words, like "father" or "parent." Because the plain and ordinary meaning of the word "mother" is "female parent, "[28] we are bound, as the district court concluded it was, to read the statute as requiring that one of the intended parents be a female parent.[29]

         ¶21 Petitioners and the State argue, however, that there exists an express codified indication that the legislature did not necessarily intend to restrict the word "mother" to mean only a female parent. They point to the Utah Code section 68-3-12, which provides the following specific instructions for construing terms that are phrased in only one gender or phrased in singular terms: "unless the construction would be . . . inconsistent with the manifest intent of the Legislature; or . . . repugnant to the context of the statute," a word used in "[t]he singular includes the plural, and the plural includes the singular" and "[a] word used in one gender includes the other gender."[30] The State urges us to apply the latter rule of construction and read the word "mother" as including the "other gender," so that, in effect, "mother" means "parent." To do so, as noted above, we would need to depart from the plain meaning of the word "mother."

         ¶22 The State correctly notes that there is a direct statutory indication that words in one gender should be construed to include the other. But, as noted in the statute itself, we apply these statutory rules of construction only when they would not be "inconsistent with the manifest intent of the Legislature" or "repugnant to the context of the statute."[31] Here, applying the State's interpretation of "mother" as including the "other gender" contradicts the legislative intent as evidenced in the plain language of the Act and is repugnant to the context of the statute.

         ¶23 Under the State's proposed reading, the statute would provide that a court could validate a gestational agreement where "medical evidence shows that the intended mother parent is unable to bear a child." Under such a construction, an opposite-sex couple could obtain court validation merely by demonstrating that an intended father-who is an "intended parent"-is incapable of bearing a child. Because every opposite-sex couple could make this showing automatically (every opposite-sex couple contains a male member and obviously a male cannot bear a child), this interpretation would write the intended mother requirement out of the statute.[32] It would therefore be "inconsistent with the manifest intent of the Legislature" and "repugnant to the context of the statute" to read "mother" to mean "parent."

         ¶24 Even were we to employ both codified rules of construction noted above-first, that the word "mother" be construed to include the other gender, and second, that the singular be construed to include the plural-the problem remains. Under this approach, we would construe the statute to mean that Petitioners must demonstrate that "medical evidence shows that the intended mother is parents are unable to bear a child or isare unable to do so without unreasonable risk to hertheir physical or mental health or to the unborn child." Unlike the State's proposed reading, this interpretation does not allow one intended parent's inability to bear a child to permit the district court to validate a gestational agreement. Instead, such reading would require that the intended parents as a unit be incapable of safely bearing a child. While this interpretation does not eviscerate the intended mother requirement of section 78B-15-803(2)(b) in the same way as the State's proposed reading, it nevertheless contradicts the plain language of the statute, which clearly limits the meaning of the word "mother" to female parent.

         ¶25 It is well established that "terms of a statute are to be interpreted as a comprehensive whole and not in a piecemeal fashion."[33] So a "proposed interpretation that is plausible in isolation may . . . 'lose[] its persuasive effect when we [seek to] harmonize [it] with the rest of' the statutory scheme."[34] That is precisely the case here.

         ¶26 An examination of a few additional provisions within the Act makes clear that a gender-neutral interpretation of the gestational agreement provisions is untenable. Section 78B-15-102, the "Definitions" section of the Act, clearly illustrates that the legislature intended the term "mother" to have a distinct and separate meaning from the word "father." While the Act fails to define "mother" or "father" expressly, other definitions in section 102 indicate the word "mother" was intended to be tied to the female gender. For example, the legislature expressly linked "mother" to "woman" in its definition of "Gestational mother": "'Gestational mother' means an adult woman who gives birth to a child under a gestational agreement."[35] Additionally, the legislature repeatedly linked "father" to the male gender. For example, "Adjudicated father" is defined as "a man who has been adjudicated by a tribunal to be the father of a child, "[36] "Alleged father" is defined as "a man who alleges himself to be, or is alleged to be, the genetic father or a possible genetic father of a child, "[37] and "Declarant father" is defined as "a male who . . . claims to be the genetic father of a child."[38] And, in case there was any confusion as to the term "man" within these definitions, the legislature further stated that "'Man' . . . means a male individual."[39] Thus, it seems clear from the statute's language that the legislature understood "mother" to be female-specific and distinct from the male-specific term "father."

         ¶27 Likewise, the legislature repeatedly associated the term "mother" with the physical act of carrying and giving birth to a child-an act performed exclusively by females. The Act uses the term "birth mother" throughout the statute, [40] while referring to fathers mainly as "alleged fathers," "adjudicated fathers," or "declarant fathers." Similarly, several definitions within section 102 expressly tie motherhood to the act of giving birth. For example, the statute defines "Birth expenses" to include "expenses for the biological mother during her pregnancy and delivery, "[41] and, as stated above, defines "Gestational mother" as "an adult woman who gives birth to a child under a gestational agreement."[42] Likewise, the act of giving birth is directly linked to womanhood: the Act states that the term "Donor" does not include "a husband who provides sperm, or a wife who provides eggs," or "a woman who gives birth to a child."[43]The word "mother" under the statute, therefore, denotes a gender that is biologically capable of carrying and giving birth to a child, as opposed to one that is not.

         ¶28 The Act also repeatedly draws a distinct line between "father" and "mother." In its definitional section the Act provides that "'Genetic testing' means an analysis of genetic markers to exclude or identify a man as the father or a woman as the mother of a child."[44] Similarly, in determining the parent-child relationship, the Act provides that "[t]he mother-child relationship is established between a woman and a child" while "[t]he father-child relationship is established between a man and a child."[45] Thus, it is clear that the legislature intended the term "mother" to be read as a female parent, distinct and separate from the word "father," and not as a gender-neutral term.

         ¶29 Accordingly, reading the term "mother" to mean "father" or "parent," as Petitioners and the State suggest, is "inconsistent with the manifest intent of the Legislature" and "repugnant to the context of the statute."[46] Given the legislature's repeated efforts to distinguish "mother" from "father," we cannot say that the legislature intended "mother" to include "father" or "parent." Thus, the construction statute, by its own terms, precludes us from using those rules here.

         ¶30 In addition to the clear language of the statute, it seems highly unlikely the legislature intended Petitioners' proposed interpretation, given the legal landscape at the time the law was passed. As noted by the Petitioners, "[t]he statute was . . . written with gender specific language at a time when marriage in Utah could only be between a man and a woman." Section 78B-15-803 was adopted in 2005-ten years before the United States Supreme Court's decision extending the constitutional right to marry to same-sex couples. At the time the law went into effect, Utah's constitutional provision prohibiting same-sex marriage was operative and legally enforceable.[47] The legislature therefore likely did not contemplate a reading of the statute that would allow same-sex couples to enter valid gestational agreements-a benefit the legislature expressly conditioned on marriage.

         ¶31 Accordingly, the district court was correct in holding the word "mother" under section 78B-15-803 unambiguously refers to woman and that it was bound to apply the statute as written.

         III. The Canon of Constitutional Avoidance is Inapplicable

         ¶32 Both the Petitioners and the State attempt to bolster their gender-neutral interpretation by citing to this court's canon of constitutional avoidance. The State argues that "[u]nder the constitutional avoidance doctrine, the Court should interpret 'mother' and 'her' in section 78B-15-803 to include 'father' and 'his.'" Such construction, the State suggests, "avoids the serious . . . constitutional questions raised by the district court's alternative construction." But Petitioners and the State jump the gun.

         ¶33 It is true that when faced with multiple reasonable readings of a statute, we construe the statute in a way that avoids doubts as to its constitutionality.[48] We have cautioned, however, that "too-hasty invocation of the canon can easily undermine legislative intent."[49]An appeal to constitutional avoidance is "not an invitation for us to break faith with the statute's text."[50] So even "when we are trying to save a statute from constitutional concerns, we are not at liberty to rewrite the statute."[51]

         ¶34 Here, Petitioners' and the State's premature invocation of the canon undermines the legislative intent. As noted above, reading "mother" to include the "other gender" would contradict the plain language of the statute and would work to eliminate the intended mother requirement from section 78B-15-803. Such a reading would also contradict the legislature's intent in enacting the gestational agreement portion of the Act-which was to provide opposite-sex married couples the ability to form valid gestational agreements. Accordingly, we are tied to the statute's text and may not rewrite or depart from its language for fear of constitutional concerns. Rather, we are required to confront the constitutionality of the statute head on.

         IV. Utah Code Section 78B-15-803(2)(b) is Unconstitutional Under Obergefell and Pavan

         ¶35 Petitioners alternatively argue that the intended mother requirement in section 78B-15-803(2)(b) violates the Utah and federal constitution. The State has failed to oppose Petitioners' constitutional argument despite receiving proper notice, pursuant to rule 25A of the Utah Rules of Appellate Procedure, of Petitioners' intention to challenge the constitutionality of the statute. The State has waived its right to defend the statute's constitutionality. Our review of this issue therefore could stop here. Nevertheless, we choose to fully address Petitioners' constitutional argument in light of the important issues at stake in this case.

         ¶36 As noted above, section 78B-15-803(2)(b) of the Utah Code effectively conditions the validation of a gestational agreement on at least one of the two intended parents being a female parent. This squarely violates Obergefell in that it deprives married same-sex male couples of the ability to obtain a valid gestational agreement-a marital benefit freely provided to opposite-sex couples. Under the statute, married same-sex male couples are treated differently than married opposite-sex couples. Because under Obergefell same-sex married couples are constitutionally entitled to the "constellation of benefits that the States have linked to marriage, "[52] we hold the intended mother requirement in Utah Code section 78B-15-803(2)(b) unconstitutional.

         ¶37 In Obergefell, the United States Supreme Court held as follows: "the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty."[53] The Court noted, however, that this right may include not only "symbolic recognition," but also "material benefits to protect and nourish the union."[54]

States . . . have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities. These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers' compensation benefits; health insurance; and child custody, support, and visitation rules.[55]

         The Court further held that because the "States have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order," there should be "no difference between same- and opposite-sex couples with respect to [these rights]."[56]

         ¶38 While the Obergefell Court did not address at length how state laws should be implemented in light of same-sex couples' right to marry, the Court did hold that the Constitution "does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex."[57] On this basis, the Court invalidated several challenged state laws in Obergefell "to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples."[58] Thus, Obergefell precluded states from denying same-sex couples "the constellation of benefits that the States have linked to marriage."[59]

         ¶39 The United States Supreme Court recently affirmed this notion. In Pavan v. Smith, the Court reviewed an Arkansas statute that required the name of a mother's male spouse to appear on her child's birth certificate, even when the mother conceived the child by means of artificial insemination through an anonymous sperm donation, but made no such requirement when the mother's spouse was female under the same circumstance.[60] The Arkansas statute therefore allowed officials to omit the name of a married woman's female spouse from her child's birth certificate while at the same time mandating that the name of a married woman's male spouse be placed on the certificate. Two married same-sex couples brought suit seeking a declaration that the state's law violated the Constitution under Obergefell.[61] On appeal, a divided Arkansas Supreme Court ultimately sided with the state, holding that the statute did "not run afoul of Obergefell" because the state law was centered on the biological relationship of the mother or father to the child and not the marital relationship of the husband and wife. [62]

         ¶40 The United States Supreme Court summarily reversed the Arkansas Supreme Court's decision, holding that the law's "differential treatment infringes on Obergefell's commitment to provide same-sex couples 'the constellation of benefits that the States have linked to marriage.'"[63] The Court made clear that the state chose "to make its birth certificates more than a mere marker of biological relationships."[64] Instead, the "State uses those certificates to give married parents a form of legal recognition that is not available to unmarried parents."[65] Accordingly, the Court held that "Arkansas may not, consistent with Obergefell, deny married same-sex couples that recognition."[66]

         ¶41 Pavan affirms Obergefell's mandate that married same-sex couples be afforded the governmental rights and benefits granted to married opposite-sex couples. Under these decisions, states may no longer deny benefits conditioned on the institution of marriage to same-sex couples which are freely granted to couples of the opposite sex. State laws that condone such disparate treatment will be declared "unconstitutional to the extent they treat[] same-sex couples differently from opposite-sex couples."[67] Thus, the Supreme Court has made it abundantly clear that "the Constitution entitles same-sex couples to civil marriage 'on the same terms and conditions as opposite-sex couples.'"[68]

         ¶42 It is with these terms and conditions that we are concerned today. Accordingly, we must determine whether section 78B-15-803 affords a benefit linked to marriage and whether it permits disparate treatment of certain same-sex marriages.

         ¶43 A valid gestational agreement is undoubtedly a benefit linked to marriage. Obtaining a valid gestational agreement is, in many cases, one of the most important benefits afforded to couples who may not be medically capable of having a biological child. Such an agreement works to secure parental rights to an unborn child and bestows rights and benefits upon the intended parents. The State has explicitly conditioned this benefit on a petitioner's marital status; no unmarried couple may obtain one.[69] It is therefore unquestionably linked to marriage.

         ¶44 Application of section 78B-15-803(2)(b) results in disparate treatment of similarly situated same-sex male marriages. The statute requires that medical evidence be presented to the court, showing that the intended mother is medically incapable of bearing a child or to do so would otherwise harm her or the child. It is impossible for married same-sex male couples to meet this requirement since neither member is a "mother" under the statute. Requiring one of the two intended parents to be female precludes married same-sex male couples from entering into a valid gestational agreement[70]-a benefit explicitly conditioned on marriage. The statute therefore treats married same-sex male couples differently than married opposite-sex couples. Under Obergefell and Pavan, the Constitution proscribes such disparate treatment.

         ¶45 Under these cases, married same-sex couples, whether male or female, are entitled under the Constitution to the same terms and conditions as married opposite-sex couples.[71] In other words, same-sex couples must be afforded all of the benefits the State has linked to marriage and freely grants to opposite-sex couples. Because Utah Code section 78B-15-803(2)(b) works to deny certain same-sex couples a marital benefit freely accorded to opposite-sex couples, it is unconstitutional under Obergefell and Pavan.

         V. Utah Code Section 78B-15-803(2)(b) is Severable From the Act

         ¶46 Having concluded that section 78B-15-803(2)(b) of the Utah Code is unconstitutional, we must now determine whether that subsection is severable from the rest of the Act.

         ¶47 Petitioners argue that the intended mother requirement is severable from the remainder of the statute and so the court may "still allow the remaining portion of the statute to remain in effect." The State did not address the constitutional question in its amicus brief and therefore made no representation as to the severability of the statute.

         ¶48 "When ruling on the constitutionality of a statute, 'the general rule is that statutes, where possible, are to be construed so as to sustain their constitutionality. Accordingly, if a portion of the statute might be saved by severing the part that is unconstitutional, such should be done.'"[72]

         ¶49 In determining the severability of an unconstitutional subsection, "we look to legislative intent."[73] When no express legislative intent is present within the statute, "we 'turn to the statute itself, and examine the remaining constitutional portion of the statute in relation to the stricken portion.'"[74] We review "the statute as a whole and its operation absent the offending subsection," and if "the remainder of the statute is operable and still furthers the intended legislative purpose, the statute will be allowed to stand."[75] In other words, we look at "whether the remaining portions of the act can stand alone and serve a legitimate legislative purpose."[76]

         ¶50 The legislature did not include a severability provision or any other express indication of its legislative intent regarding unconstitutional provisions within the Act itself. So we must determine whether the statute is operable and furthers a legitimate legislative purpose absent that provision.[77]

         ¶51 Section 78B-15-803 remains operative even absent the intended mother requirement. Section 803(2) requires the district court to make eleven findings in order to validate a gestational agreement. One of these is the unconstitutional intended mother requirement. The other findings are that: (1) residency requirements have been satisfied; (2) a home study has been conducted of the intended parents and the intended parents meet the standards of fitness applicable to adoptive parents; (3) all parties have participated in professional counseling where they discussed different options and consequences of the agreement; (4) all parties have voluntarily entered into the agreement and understand its terms; (5) the prospective gestational mother has had a successful pregnancy in the past and neither she nor the new child will be harmed by her carrying a new child; (6) all parties are at least 21 years old; (7) an adequate provision has been made for health-care expenses in the agreement; (8) consideration paid to the prospective gestational mother is reasonable; and (9) neither the prospective gestational mother's eggs, nor (10) her husband's sperm, are being used in the assisted reproduction procedure.[78] Striking the intended mother requirement from this list does not reduce the significance of these other required findings. The district court should still be required to make findings on each of the additional ten conditions. Severing the intended mother requirement from the statute does nothing to affect the operability of the remaining portions of the statute.

         ¶52 We next turn to whether the legitimate purpose of the statute is still furthered even without the intended mother requirement. We hold that it is. Both Petitioners and the State argue that the purpose of the statute is to permit married couples to enter into gestational agreements where the couple is medically incapable of bearing children on their own. While this is certainly one of its purposes, it is not the sole purpose of the statute. Viewing section 78B-15-803 as a whole, additional purposes of the statute include protecting the well-being of the unborn child and ensuring that the parties have adequately considered the consequences of their arrangement before entering into a legally enforceable gestational agreement. Excising the intended mother provision does not undermine these purposes.

         ¶53 As noted above, the legislature made a list of eleven findings that must be satisfied before an agreement will be deemed enforceable. These include findings on the fitness of the intended parents to raise a child, the health of the prospective gestational mother, the likelihood that the prospective mother will successfully give birth to the child without harming the child, the clarity of the agreement, and the parties' understanding of their arrangement. These findings illustrate that the legislature was at least equally concerned with the well-being of the unborn child and the parties' ability to comprehend the effect of the agreement. Removal of the intended mother requirement does not undermine the ability of a district court to determine whether the prospective gestational mother can safely carry a child, whether the intended parents are fit to raise the child, and whether the parties have carefully considered their decision to enter the agreement. Thus, the district court will serve to ensure that the unborn child is protected and that the parties' carefully considered the effects of the agreement-both intended purposes of the statute.

         ¶54 Therefore, the intended mother requirement set forth in section 78B-15-803(2)(b) is severable because the remainder of the statute will continue to be operable and continue to serve a legitimate purpose after the unconstitutional intended mother requirement is excised. We therefore remand this case for further proceedings consistent with this opinion.

         Conclusion

         ¶55 Under a plain reading of the statute, a gestational agreement is unenforceable unless at least one of the intended parents is female. This requirement precludes married same-sex male couples from obtaining a valid agreement. As required by Obergefell and Pavan, we hold that section 78B-15-803(2)(b) is unconstitutional under the Fourteenth Amendment's Equal Protection and Due Process Clauses. Additionally, we hold that the intended mother requirement of section 78B-15-803(2)(b) is severable from the remainder of the Act. We accordingly reverse and remand for further proceedings consistent with this opinion.

          Justice Pearce, concurring:

         ¶56 I concur in the result the majority reaches, including the majority's conclusion that our judiciary may constitutionally review and validate gestational agreements under the statutory framework at issue here. I write separately, however, to highlight jurisdictional and separation of powers questions implicated in this case, particularly given the language the majority uses when addressing the issue of jurisdiction. In its discussion, the majority examines the "judicial power of the state" conferred on our judiciary by the Utah Constitution, and references two "constitutional" limits on the scope of that power and the exercise thereof. Supra ¶ 12 (citation omitted). Because I question if we have ever squarely confronted whether those limits are constitutional requisites, I raise the issues for possible exploration in future cases.

         ¶57 First, the majority suggests that the judicial power constitutionally vested in our courts contains a general requirement of "adversariness." Supra ¶ 12. The majority asserts that "'judicial power' in Utah has traditionally been limited to the adjudication of disputes, and where no dispute between opposing parties exists, the court is without jurisdiction." Supra ¶ 12. In support, the majority recites language from our prior opinions that I find to be potentially problematic when utilized in this context, specifically, the statements "judicial power . . . is generally understood to be the power to hear and determine controversies between adverse parties," supra ¶ 12 (alteration in original) (emphasis added to "generally understood") (emphasis omitted from "controversies between adverse parties") (quoting Carlton v. Brown, 2014 UT 6, ¶ 29, 323 P.3d 571), and "in 'the absence of any justiciable controversy between adverse parties, the courts are without jurisdiction, '" supra ¶ 12 (quoting Carlton, 2014 UT 6, ¶ 29). Applying this language, the majority opines that "lack of adversariness" would "[o]rdinarily . . . raise constitutional questions of justiciability." Supra ¶ 12.

         ¶58 I worry that we risk equating statements regarding a "general understanding" of our judicial power, see supra ¶ 12, with a rule regarding what must exist before we can exercise that power.[79]Likewise, we should not reflexively equate justiciability principles or statements regarding our jurisdictional authority with our constitutional "judicial power." We often use the term "jurisdiction" when discussing our authority to entertain a dispute under rules of our own making. See State v. Lara, 2005 UT 70, ¶ 12, 124 P.3d 243. Thus, a statement that we are "without jurisdiction" in a particular circumstance does not establish a lack of constitutional authority, but invites inquiry as to the source of the jurisdictional limit.

         ¶59 For example, in Gregory v. Shurtleff, we suggested that our standing jurisprudence reflects "'judge-made'" rules regarding our exercise of jurisdiction. 2013 UT 18, ¶ 16 & n.10, 299 P.3d 1098 (quoting 59 Am. Jur. 2d Parties § 30 (2d ed. 2012) ("Standing in the state courts is a judge-made doctrine . . . .")); see also id. ¶ 12 n.4 (noting that although separation of powers concerns support certain standing requirements, "these concerns do not reflect an absolute, constitutionally[]imposed jurisdictional requirement, but rather a historical and pragmatic conviction that particular disputes are most amenable to resolution in particular forums" (citation omitted) (internal quotation marks omitted)). Thus, while we have described standing as "rais[ing] fundamental questions regarding [our] basic authority over [a] dispute," Alpine Homes, Inc. v. City of W. Jordan, 2017 UT 45, ¶ 2, 424 P.3d 95 (citation omitted), it is not necessarily a constitutional limit on our judicial power, cf. United States v. Windsor, 570 U.S. 744, 757 (2013) (noting that "[r]ules of prudential standing, by contrast [to Article III requirements], are more flexible rule[s] . . . of federal appellate practice" (third and fourth alterations in original) (citation omitted) (internal quotation marks omitted)).

         ¶60 It appears that we have never examined whether the Utah Constitution requires adversity between parties as a jurisdictional prerequisite. The language the majority relies upon for this proposition entered our jurisprudence in Citizens' Club v. Welling, 27 P.2d 23 (Utah 1933). Welling addressed whether the power to "hear and determine" factual matters, and to apply the law thereto, is an exclusively judicial function. Id. at 26. At issue was a statute authorizing the Secretary of State to revoke the charter of a social club if the club permitted gambling. Id. at 23. The Citizens' Club challenged the statute, arguing that it impermissibly delegated judicial power to the Secretary. Id.

         ¶61 Rejecting that challenge, we reasoned that while "[t]he term 'judicial power of courts' is generally understood to be the power to hear and determine controversies between adverse parties and questions in litigation," id. at 26, the broader power to "hear and determine" evidence, facts and legal questions is not "exclusively" or "necessarily" judicial, id. at 25; see also id. at 26 (characterizing this view as "sustained by the weight of judicial authority"). In so holding, we did not consider our general understanding of judicial power as a limitation on judicial authority, but addressed whether judicial decision-making authority, described more broadly, may also be exercised by other branches of government. See id. at 26; id. at 24 (noting the parties' agreement that "the term 'judicial power' as employed in the Constitution is not capable of precise definition"); id. at 26 ("Merely to say that judicial power is 'a power to hear and determine' is not decisive . . . . [A]dministrative and executive officers often are required to hear and determine many facts upon which their action is based but which is not judicial in the sense that it belongs exclusively to the courts." (emphasis added)). The question of whether judicial power might be exercised in a nonadversarial proceeding was not before us. Our statement regarding our general understanding of judicial power was not commentary or even dicta directed to that issue, much less a statement definitively resolving the question.

         ¶62 We have quoted Welling's language a number of times since, usually in separation of powers contexts. See, e.g., Judd v. Drezga, 2004 UT 91, ¶ 37, 103 P.3d 135; Salt Lake City v. Ohms, 881 P.2d 844, 849 (Utah 1994); Timpanogos Planning & Water Mgmt. Agency v. Cent. Utah Water Conservancy Dist., 690 P.2d 562, 569 (Utah 1984). But we have never employed that language as defining the scope of our judicial power as it relates to nonadversarial proceedings. This court has not previously examined whether the Utah Constitution requires adversity between parties before we can properly exercise jurisdiction. Indeed, the separation of powers issues raised in Judd, Ohms, and Timpanogos Planning & Water had nothing to do with whether adversariness is a jurisdictional requirement. And because there were adverse parties in those cases, there was no need for us to determine whether adversity was a constitutional requisite. Thus, by adopting the premise that the Utah Constitution generally requires adverse parties before a court may exercise jurisdiction, and viewing our courts' historical jurisdiction over non-adverse adoption cases as an exception to that general rule, the majority's analysis may distort the way we view our judicial power in future cases.

         ¶63 While Utah courts most often resolve disputes between adverse parties, Utah courts have also historically presided over nonadversarial proceedings. Indeed, at the time of statehood, the courts oversaw many proceedings that had the potential to lack adverse parties, including adoptions, name changes, probate, and guardianship matters. See supra ¶ 14 (concluding that "before the Utah Constitution was adopted, courts apparently had power to preside over non-adversarial adoption proceedings" (citing 1884 Utah Laws 52-53)); supra ¶ 15 (concluding that "shortly after the Utah Constitution was adopted, the Utah legislature codified a new adoption statute establishing a non-adversarial statutory scheme for adoption cases" (citing Utah Rev. Stat. § 6 (1898))); see also, e.g., II Utah Comp. Laws § 4016 (1888) ("If no person, within one year after the probate of a will, contested the same or the validity thereof, the probate of the will is conclusive, saving to infants and persons of unsound mind, a like period of one year after their respective disabilities are removed."); id. § 4305 ("The probate court of each county . . . may appoint guardians . . . of minors . . . . Such appointment may be made on the petition of a relative or other person on behalf of the minor, or on the petition of the minor, if fourteen years of age."); Utah Rev. Stat. § 1546 (1898) (providing that after a petitioner seeking a name change fulfills the statutory requirements, "the district court may order the change of name as requested, upon proof in open court . . . that there exists proper cause for granting the same, and that . . . notice of the hearing thereof has been given").

         ¶64 And we continue to exercise jurisdiction in these types of proceedings. Thus, our dockets reflect several examples of matters that routinely lack adverse parties. Yet this court has, as noted above, occasionally spoken in absolute terms when remarking on the adversariness usually present in judicial proceedings. See, e.g., Univ. of Utah v. Indus. Comm'n of Utah, 64 Utah 273, 229 P. 1103, 1104 (1924) ("Even courts of general jurisdiction have no power to decide abstract questions or to render declaratory judgments, in the absence of an actual controversy directly involving rights."). But those statements do not reflect the reality of judicial practice either currently or at the time of statehood.

         ¶65 The question, then, is whether we should equate our court's language regarding a "general understanding" of our judicial power with a "longstanding limitation" on its exercise, see infra ¶ 126 (Lee, A.C.J., concurring), absent a prior holding that such a limit exists. Without further inquiry, I am not prepared to do so. When reciting general principles, we may fail to acknowledge the full scope of our judicial power or the nuances that attend its application. I am concerned that, here, the majority may be converting that failure into a jurisdictional bar. Broad language, inconsistent with current or historical practice, should not be read so literally.

         ¶66 I am, of course, familiar with federal case law suggesting the need for adversity as a hallmark of the federal constitution's "case and controversy" clause. See, e.g., Deposit Guar. Nat. Bank, Jackson v. Roper, 445 U.S. 326, 348 (1980) ("Art. III asks but a single question: Is there a continuing controversy between adverse parties who retain the requisite stake in the outcome of the action?"); Richardson v. Ramirez, 418 U.S. 24, 36 (1974) (explaining that federal courts "are limited by the case-or-controversy requirement of Art. III to adjudication of actual disputes between adverse parties"). But the United States Supreme Court has clarified that "prudential considerations," rather than constitutional language, underlie the Court's "insist[ence] upon 'that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.'" Windsor, 570 U.S. at 760 (emphasis added) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). Moreover, even if federal constitutional law were to impose a strict adversariness standard, see Windsor, 369 U.S. at 785 (Scalia, J., dissenting), our understanding of federal law should not unduly color our analysis in this instance-both because the constitutional language and principles are different and because any federal adversariness requirement may be inconsistent with historical federal practice.

         ¶67 "Unlike the federal system, the judicial power of the state of Utah is not constitutionally restricted by the language of Article III of the United States Constitution requiring 'cases' and 'controversies,' since no similar requirement exists in the Utah Constitution." Jenkins v. Swan, 675 P.2d 1145, 1149 (Utah 1983). Thus, like "[n]umerous other states," we are "mindful that [our] constitution[] do[es] not impose the same restrictions on [our] judicial power that the federal constitution imposes on federal courts." Gregory, 2013 UT 18, ¶ 16. Accordingly, before determining that an element of federal justiciability applies as a matter of Utah constitutional law, we examine whether there is "support in either the text of the [Utah] Constitution or in [Utah] jurisprudence" for recognizing the standard "as a constitutional requirement" or "adopting the federal . . . doctrine." See id. ¶ 17 (citation omitted); see also, e.g., State v. Tulley, 2018 UT 35, ¶ 80, 428 P.3d. 1005 ("When asking this court to interpret constitutional language, a party should analyze the plain meaning of the constitutional text, our prior case law, the interpretation other courts have given to similarly worded provisions in their state constitutions, and what lessons might be gleaned from the historical context." (citation omitted) (internal quotation marks omitted)). With respect to adversity between parties, we have not yet undertaken this analysis.

         ¶68 While federal law often proves a helpful resource when interpreting the Utah Constitution, federal law regarding adversariness may prove of limited utility. Historically, federal courts presided over a number of proceedings that did not require adverse parties. See James E. Pfander, Standing, Litigable Interests, and Article III's Case-or-Controversy Requirement, 65 UCLA L. Rev. 170, 175 (2018) (noting that, in our nation's early years, Congress assigned a number of noncontentious matters to the federal courts). For example, in the eighteenth and nineteenth centuries, federal courts oversaw prize and salvage petitions to establish title to intercepted merchant ships and naval vessels of opposing nations, which often proceeded uncontested, without the appearance of an adverse party. James E. Pfander & Daniel D. Birk, Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction, 124 Yale L. J. 1346, 1368-69 (2015). In addition, early naturalization proceedings did not require a party to name an opposing party. See An Act to Establish an Uniform Rule of Naturalization, 1 Stat. 414, 414-15 (1795). The Supreme Court nevertheless upheld federal court jurisdiction over those proceedings, noting that "[t]he function of admitting to citizenship has been conferred exclusively upon courts continuously since the foundation of our government." Tutun v. United States, 270 U.S. 568, 576 (1926).

         ¶69 In his separate opinion, Justice Lee suggests a different historical narrative, asserting that early American jurisprudence and Utah legal proceedings reflected a "general requirement of adversariness" that is "rooted deeply in our law," infra ¶¶ 106-12, upon which "our entire branch of government is built," infra ¶ 136. He thus posits that "the traditional understanding of the judicial power . . . carries a requirement of adversariness even without an express 'case and controversy' clause." Infra ¶ 133. But I am not presently convinced that the "traditional understanding" of the judicial power is completely iron-clad when it comes to adversariness. The historical evidence, even if conflicting, demonstrates that the origin of the adverse party requirement is worthy of additional briefing and analysis if it is to be used to inform our understanding of our state constitution.[80]

         ¶70 Accordingly, I question whether the adversity that so often exists in judicial proceedings is constitutionally required. Justice Lee suggests it is and attempts to explain away Utah courts' involvement in numerous nonadversarial proceedings as exceptions to the general rule. But I am not persuaded that Justice Lee offers a definitive answer. Even if Justice Lee is correct that some proceedings can be explained as actions that resemble in rem proceedings and are "inherently" or "functionally" adversarial, infra ¶¶ 125, 130, that explanation fails to account for the broader range of nonadversarial proceedings over which Utah courts have historically presided. And as Justice Lee acknowledges, defining a fully explanatory exception to an adversariness rule may prove a difficult task. See infra ¶ 126 ("The name change example cited by Justice Pearce may be harder to reconcile. And I suspect there may be other examples of single-party actions that have been filed in our courts." (citation omitted)).

         ¶71 Although we are not required to resolve this issue to decide this case, the time may come when we will need to wrestle with the question. My aim in writing separately is to highlight that the cases the majority cites have not done the heavy lifting needed to decide whether the Utah Constitution premises our jurisdiction on the presence of adverse parties. When that question is squarely presented, this court will need to do much more than recite the general statements regarding this court's authority on which the majority relies.

         ¶72 My second concern centers on the majority's statement that "we are constitutionally limited to wield only judicial power." Supra ¶ 12 (citation omitted) (internal quotation marks omitted). Because the majority ultimately concludes that a court exercises judicial power when it reviews and approves a gestational agreement under the statutory framework at issue here, we have no need to confront this separation of powers principle in this case. I raise the issue, however, because the Utah Constitution[81] and our precedent suggests that the legislative, executive, and judicial branches of government may be tasked with responsibilities not plainly within their respective spheres, so long as those responsibilities do not unconstitutionally infringe on another branch's duties.

         ¶73 I am not writing to express a view on how the constitutional language should be interpreted. Rather, I seek to flag the issue for a case in which it is presented and to advocate for consistency in our interpretation and application of Utah constitutional law.

         ¶74 The majority first analyzes whether our compliance with the gestational agreement statute involves the exercise of judicial power. In doing so, the majority advises that it "normally would dismiss this case" because courts are "generally" without jurisdiction absent a "justiciable controversy between adverse parties," and "no dispute between opposing parties is present here." Supra ¶ 12 (citation omitted) (internal quotation marks omitted). Thus, despite explicit legislative direction that "a tribunal may issue an order validating [a] gestational agreement and declaring that the intended parents will be the parents of a child born during the term of the agreement," Utah Code § 78B-15-803, the majority opines that it would ordinarily decline to do so.

         ¶75 The majority's approach thus raises the question of whether, assuming adversity between parties is generally required to exercise judicial power, the Legislature may authorize or assign to the judicial branch functions not traditionally understood to be encompassed in that power. And it requires us to consider what test we should apply to evaluate the constitutionality of the Legislature's directive. The majority signals that the answer is simple-the judiciary cannot exercise anything other than judicial power, rendering any other analysis unnecessary.[82]

         ¶76 But we have previously recognized that the three branches of government, acting through their respective officers, may be tasked with or perform duties that fall outside their "core" responsibilities, so long as those tasks do not invade the "exclusive" province of another branch of government. See In re Young, 1999 UT 6, ¶¶ 14, 26, 976 P.2d 581. Moreover, we have recognized that some tasks or powers might properly be exercised by more than one branch, and in some circumstances, the Legislature may direct the assignment of those tasks. See, e.g., Taylor v. Lee, 226 P.2d 531, 536-38 (Utah 1951) (concluding that "the Legislature could grant to the Governor the right to remove for cause," even "[a]ccepting the proposition that removal from office is a judicial function"); Welling, 27 P.2d at 25, 26 (noting agreement with the principle that "while the courts have undoubted power to revoke and annul charters granted to corporations on grounds, among others, of an illegal or wrongful exercise or use of such charters, yet it also is competent for the Legislature to provide for a legislative or administrative forfeiture of the charter as well as for a judicial one").

         ¶77 Accordingly, when we have reviewed the actions of other branches of government, we have not stated that the Legislature may exercise only legislative power, or that the executive branch may exercise only executive power, but have applied a three-part test asking,

First, [is the state actor] "charged with the exercise of powers properly belonging to" one of the three branches of government? Second, is the function that the statute has given . . . one "appertaining to" another branch of government? The third and final step in the analysis asks: if the answer to both of the above questions is "yes," does the constitution "expressly" ...

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