Kristin Murphy, Deseret News
SALT LAKE CITY — Salt Lake residents Derek Kitchen and Moudi Sbiety want to get married, but not in California or Iowa or one of the other 10 states that allow gay marriage.
"We don't plan to get married in any other state but Utah," Sbiety said. "We don't want to live in any other state. Our friends are here. Our families are here. Utah is home and we can't see ourselves living anywhere else."
Sbiety, 25, and Kitchen, 24, own a successful business making Lebanese hummus sold in stores and at farmers markets across the valley. Together for four years, the couple want to buy a house.
"We just want to settle down and grow and build our own lives," Sbiety said. "That is very hard to do in Utah — legally, not socially."
Two momentous U.S. Supreme Court decisions last week on the Defense of Marriage Act and California's Proposition 8 bring the gay marriage issue to the forefront in states that only recognize marriage as the legal union of a man and a woman.
In Utah, it will play out in federal court where Sbiety and Kitchen are plaintiffs in a federal lawsuit challenging a Utah voter-approved constitutional amendment that defines marriage as between a man and a woman. But state lawmakers might have some decisions ahead of them, while advocates and opponents of same-sex marriage promise to make their voices heard.
While the courts seem to hold the trump card, University of Utah political science professor Matthew Burbank said there's no "slam dunk path" to changing a state's same-sex marriage ban.
"I think it's very unclear as to what those outcomes are going to be at this point," he said. "I just don't see that there's a direct path that says, 'Oh, yes, the next decision is going to be that same-sex marriages are constitutionally protected and they have to apply in all states.'"
Burbank said he anticipates a range of lower court decisions — some upholding state bans, others challenging them — and that the issue will end up at the U.S. Supreme Court again in a few years.
In a poll released Friday of local political insiders, the online newsletter Utah Policy asked whether Utah would ever reverse the constitutional ban on same-sex marriage.
Only 13 percent of Republicans see a reversal in the next decade or longer, compared to 39 percent of Democrats, most of whom see it taking less than 10 years. Both Republican and Democratic insiders largely agree it would take a lawsuit, though 35 percent of Republicans and 8 percent of Democrats say Utah will never change the law.
The Most Rev. John C. Wester, bishop of the Catholic Diocese of Salt Lake City, said the judicial system or government really can't adjudicate or legislate what marriage is.
"Marriage is something, in our belief system, that is divinely given to us by God. It's found in sacred scripture. It's found in natural law," he said, days after the Supreme Court issued its decisions.
Bishop Wester said he doesn't know what recourse there is to preserve traditional marriage other than to continue to engage public conversation and debate to "make our case."
"I think it's going to be a very difficult road ahead for those who would see marriage as between one man and one woman," he said, noting momentum is with those who favor same-sex marriage.
"If states continue to go the way they've been going, Utah would be one of the last — if not the last state — that would go that way. I think if it were up to the electorate in Utah, it would not go that way," Bishop Wester said.
"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."
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
Chad Griffin, president of the Human Rights Campaign, said last week in Salt Lake City that his organization won't stop fighting until all 50 states recognize same-sex marriage, predicting it will come about in five years.
Those on the opposite side of the argument, he said, need to "consider the fact they might be wrong on this one. I'm optimistic when that conversation happens, very soon, most folks will come out on the right side of history."
Niederhauser noted that it has taken the Utah Legislature years to even consider in a committee hearing a proposed statewide law prohibiting discrimination based on sexual orientation and gender identity in housing and employment practices.
"We're still working on that policy, so that's why I would say we're some time away" from considering a repeal of Amendment 3, he said.
Sen. Jim Dabakis, D-Salt Lake City, the Utah Legislature's only openly gay member, said there's plenty of time between now and when lawmakers convene in January for "noble men and women" to rethink their position.
"When all the facts are laid out and when all the fear is taken out of the issue, I think they're going to be reasonable and recognize there's civil marriage and there's religious marriage," he said.
Burbank said he wouldn't be surprised to see legislators propose resolutions affirming traditional marriage in January.
Wardle said he doesn't think the Legislature needs to make a formal declaration but individual lawmakers should make it clear that there's no reason to back away from Utah's definition of marriage.
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