Utah same-sex marriage debate shifts to appeals court Thursday
Both parties believe it provides the analytical framework and rational analysis to determine the outcome, but that doesn't mean everything rests on Windsor, Tomsic said.
"I think the judges will be most interested in how they interpret the Windsor case," said Cliff Rosky, a University of Utah law professor. "That's the subject that's going to dominate the day."
In Windsor, the justices struck down the section of DOMA that defines marriage as between a man and a woman for purposes of federal law, ruling that the government must give the same benefits to gay married couples as it does to heterosexual married couples.
Utah contends Windsor also recognizes the state's authority to define and regulate marriage. The plaintiffs argue that any state definition of marriage must be constitutional.
Bill Duncan, a lawyer and director of the Sutherland Institute's Center for Family and Society, said the state would have to convince the appeals court that Shelby read too much into the DOMA decision.
"And point out the question of novelty, that the appeals court really ought not make the announcement that all states have to have same-sex marriage," Duncan said.
Utah could raise concerns about federalism and that states have the key role in determining what valid marriages are, he said.
Duncan said the plaintiffs would want to convince the appeals court that Shelby "didn't do anything crazy." They might play to the theme that the Supreme Court wants to move toward legalizing same-sex marriage based on the DOMA ruling.
"The real meat of this is to convince the appeals court they're doing the bidding of the Supreme Court, even if the Supreme Court hasn’t said that in so many words," he said.
Duncan, Rosky and Booher are more than interested observers in the case. They were among the more than 50 people, organizations and coalitions that filed amicus or friend-of-the-court briefs.
Duncan filed for the Sutherland Institute, a conservative Salt Lake political think tank that supports traditional marriage. Rosky and Booher represent Equality Utah and the Utah Pride Center, which back same-sex marriage.
Some of the amicus parties requested time to make arguments at Thursday's hearing, but the court turned them all down.
That doesn't mean their points of view might not come up. Booher said judges sometimes find outside arguments intriguing and could ask the state or the plaintiffs about them.
Contributing: Richard Piatt
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