Gay marriage: What's next for Utah?

Published: Wednesday, July 3 2013 5:30 p.m. MDT

"That does not indicate in any way that we do not have compassion for everybody. We want to be sympathetic," he said. "But at the same time, sympathy and the truth go hand in hand, and for us this is a truth."

Peggy Tomsic, an attorney for Kitchen and Sbiety, said the Supreme Court's decision recognizes that states may define marriage but not if it violates due process and equal protection rights under the federal Constitution.

Utah lawmakers and residents have already staked out a firm position against gay marriage that shows no sign of moving as a result of last week's high court rulings.

"The Legislature is not going to anytime soon propose a repeal of Amendment 3," said Utah Senate President Wayne Niederhauser, R-Sandy. "It's not perpetual, but it's pretty close."

"I don’t think there's any palate at this point to change the (state) Constitution. I think that’s going to be with us for a long time," he said. "If any change happens, it's going to happen through a court process, in my opinion."

Public vote

In 2004, Utah voters — by a 2-1 margin — approved Amendment 3 to the state Constitution defining marriage as between a man and a woman. The law also states that no other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.

Utah does not have a voter-driven process to repeal a state constitutional amendment, according to the state elections office. Absent any legislative action, the courts would decide whether Utah's definition of marriage remains intact. Attorney General John Swallow has vowed a vigorous defense of the amendment.

The justices struck down the section of the Defense of Marriage Act that defines marriage as between a man and a woman for purposes of federal law as unconstitutional. That means legally married same-sex couples are entitled to claim the same federal benefits that are available to opposite-sex married couples.

The court also ruled that the traditional marriage activists who put Proposition 8 on California ballots in 2008 did not have the constitutional authority, or standing, to defend the law in federal courts after the state refused to appeal its loss at trial. The decision leaves in place a lower federal court decision that overturned Proposition 8 and effectively legalizes gay marriage in California.

Proponents of traditional marriage say the decisions have no bearing in Utah. But plaintiffs in the Utah lawsuit will undoubtedly use reasoning and language in Justice Anthony Kennedy's majority opinion in the DOMA case to argue the legal recognition of same-sex marriage.

"The Supreme Court's decision, which identified the due process and equal protection clauses of the federal Constitution, creates for us what we think are the cracks in that constitutional discriminatory dam that now is at issue here in Utah," said Brett Tolman, a former U.S. attorney for Utah now in private practice.

Brigham Young University law professor Lynn Wardle said Kennedy's opinion can't be read without thinking that the court is looking down the road to "toss some ammunition" to those who claim that same-sex marriage must be legalized. He said there's no doubt advocates will use "sexy" phrases from the opinion to make their case.

Some courts, he said, will rely on that to strike down traditional definitions of marriage.

"But I think that's going to be the minority. The majority of the courts are going to read the case, not just a few pithy words or flamboyant statements here and there. The whole case is extremely narrow," Wardle said.

The Supreme Court decision leaves it to states to define marriage, he said.

Fighting for change

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