Ruling on affirmative action ban now being argued in Utah same-sex marriage case

Published: Friday, May 2 2014 5:57 p.m. MDT

Plaintiffs, activists and equality supporters rally at the Utah State Capitol to show support for Judge Robert Shelby’s Dec. 20th ruling on Amendment 3 in Salt Lake City Friday, Jan. 10, 2014.

Jeffrey D. Allred, Deseret News Archives

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SALT LAKE CITY — State attorneys in Utah's same-sex marriage fight are citing a new U.S. Supreme Court ruling that upholds Michigan's ban on using race as a factor in college admissions to bolster their case.

Lead counsel Gene Schaerr says the decision strengthens Utah's argument that voters have the right to set state law at the ballot box.

Schaerr argues in a court filing this week that the Michigan case shows voters can ban preferences and that it reinforces the importance of letting people make difficult policy choices through democratic means.

An attorney for the three gay and lesbian couples who sued Utah over its voter-approved state constitutional amendment defining marriage as between a man and a woman disagrees.

In her response filed in the 10th Circuit Court of Appeals, Peggy Tomsic wrote that the ruling "did not and could not hold that voters can deny constitutional rights." She contends that principle is true whether marriage is regulated by state ballot initiatives or through legislation.

U.S. District Judge Robert Shelby struck down Utah's marriage law last December, saying it violates equal protection and due process guarantees in the Constitution. The state appealed and the case now rests with the Denver-based 10th Circuit.

The Supreme Court ruled 6-2 last week that Michigan voters had the right to change their state constitution in 2006 to prohibit public colleges and universities from taking account of race in admissions decisions. The justices said that a lower federal court was wrong to set aside the change as discriminatory.

Justice Anthony Kennedy said voters chose to eliminate racial preferences, presumably because such a system could give rise to race-based resentment. Kennedy said nothing in the Constitution or the court's prior cases gives judges the authority to undermine the election results.

"This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it," Kennedy said.

In dissent, Justice Sonia Sotomayor said the decision tramples on the rights of minorities, even though the amendment was adopted democratically.

Schaerr contends the 10th Circuit should agree with the high court that Utah voters appropriately used their democratic rights when they "decided to preserve the man-woman definition that predates government itself."

Tomsic countered that the Supreme Court decision in the Michigan case does not change its ruling last summer in Winsdor v. U.S. that in regulating marriage, states must respect people's constitutional rights.

Contributing: Associated Press

Email: romboy@deseretnews.com, Twitter: dennisromboy; DNewsPolitics

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