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Possible outcomes plentiful in appeal of Amendment 3 ruling

Published: Sunday, May 4 2014 8:04 a.m. MDT

Another possibility after the three-judge panel's decision is for the losing side to petition the Supreme Court, which only hears a small percentage of cases it's asked to take it up.

"A lot of people think it's a given that the Supreme Court would accept it. I wonder. I think the Supreme Court might want to wait for a few more circuits to decide the issue," said Michelle Mumford, assistant dean of admissions at the BYU law school and a former 10th Circuit Court clerk.

Cases are pending in four other federal appellate courts. After those possible outcomes, "we get into the weird," Rosky said.

"There are some complicated possibilities if the court makes a decision based on jurisdictional grounds, he said.

In oral arguments last month, the judges asked about legal standing in both the Utah and Oklahoma cases, though it seemed to be more of an issue in the latter. Attorneys in the Utah case did not address jurisdictional issues in their briefs. Standing has to do with whether the party has the right to assert its claim.

Two of the three couples in the Utah case are not married, while the other couple married in Iowa. The plaintiffs are suing for both the right to marry and to have marriages performed in other states recognized in Utah. They named the governor, the attorney general and the Salt Lake County clerk, who oversees the issuing of marriage licenses, as defendants.

But only the governor and the attorney general appealed Shelby's ruling.

Rosky said its possible the court could find the state doesn't have standing on the licensing issue but does have standing on the recognition question.

After the hearing, the state argued in a two-page brief that it does have standing because Shelby found the state's marriage law unconstitutional and stopped the governor and attorney general from enforcing it.

Mumford said appellate judges like to bump cases down to the district court on jurisdictional grounds because it's safer and easier.

The 10th Circuit could also kick the case back to Shelby if it sees the need for a trial on the evidence, which in Utah could center on same-sex parenting versus heterosexual parenting. But most court observers say that is unlikely.

The Utah case is the first to reach a federal appellate court since the U.S. Supreme Court struck down part of the Defense of Marriage Act in U.S. v. Windsor last summer.

A year ago last month, Derek Kitchen and Moudi Sbeity, Laurie Wood and Kody Partridge, and Karen Archer and Kate Call challenged Utah's law against same-sex marriage in federal court. Archer and Call were married in Iowa and sued Utah to have their union recognized as valid.

Since the high court ruling on DOMA, 11 federal judges, including Shelby, have struck down state bans on gay marriage or on the recognition of same-sex marriage from other states.

Email: romboy@deseretnews.com, Twitter: dennisromboy

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